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Decision 4268 /a- �to€e©%€€4 c ateaae ` Aitt air ree, Owls Ter(781)383-0600 Taa (781)383-2734 cjhlaw@comcast.net CERTIFIED MAIL RETURN RECEIPT REQUESTED NO. 7008 1830 0002 5629 4551 February 22,2010 Bryant Palmer 66 Traders Lane West Yarmouth, MA 02673 Re: William Marasco v. Steven DeYoung,Member of the Town of Yarmouth Zoning Board of Appeals et al Land Court Case No. 10 MISC 422617 Dear Mr. Palmer: In accordance with General Laws Chapter 40A, Section 17, notice is hereby given of a Complaint filed with the Land Court on February 12, 2010 relative to the above referenced matter. Enclosed is a copy of the Complaint. Very truly yours, 004124 Charles J. Hum hre � Esquire .1243 CJH:epm Enclosures COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,ss. LAND COURT DEPARTMENT r^1 DOCKET NO. /0'Pt1I5C. atol ./ ) WILLIAM MARASCO, ) • ) Plaintiff ) ) v ) STEVEN DeYOUNG, SEAN IGOE, ) COMPLAINT JOSEPH SARNOSKY,DAVID REED, ) • DEBRA MARTIN and BRYANT ) PALMER, as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth,Barnstable County, Massachusetts,denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner. • PARTIES 1. The Plaintiff, William Marasco,is an individual with an address of 143 River Street, South Yarmouth,Massachusetts 02664(hereinafter referred to as"Marasco"). 2: The Defendants, Steven DeYoung,691 Willow Street,South Yarmouth, Massachusetts 02664; Sean Igoe,223 South Sea Avenue, West Yarmouth,Massachusetts 02673;Joseph Sarnosky, l l l Merchant Avenue, Yarmouth Port,Massachusetts 02675; David Reid, 1292 Route 28,South Yarmouth,Massachusetts 02664;Debra Martin,P.O. Box 320, South Yarmouth,Massachusetts 02664; and Bryant Palmer,66 Traders Lane, • • i West Yarmouth,Massachusetts 02673,who are not named individually but are named as • Members of the Yarmouth Zoning Board of Appeals(her'einafter collectively referred to • . as the`Board'). 3. The Defendant,the Town of Yarmouth,is a municipal corporation,with a place • Of business at Yarmouth Town Hall; 1146 Route 28; South Yarmouth,Massachusetts • 02664 (hereinafter referred to as the"Town"). • • 'STATEMENT OF FACTS: • • 1. The Plaintiff,Marasco, is the•owner of a two-family residence located at 143. • 'River Street, South Yarmouth,Barnstable County,Massachusetts 02664. Said parcel contains 21,780 sq. ft.of land and is located in an RS 40 Zoning District. . 2. Marasco purchased the property on November 29,2001 from the Coughlin • Family Trust,Richard Bussiere,Trustee. At the time of purchase the property,consisted • "of a dwelling house with an attached garage apartment. Further, at the time of purchase the house and garage apartment were fully furnished. In 2001 and every year thereafter • to the present,Marasco has applied for and received a rental permit and has rented and • continues to rent the apartment to third parties. ' . r • • • • • 2 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005,Marasco contacted James D.Brandolini,Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3, 2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney,opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot area for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexistingnonconforming use. • 7. In March 2006, the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s. 3 8. After receiving correspondence from Richard Bussiere,Trustee of the Coughlin Family Trust,with regard to use and after receiving an opinion from Town Counsel dated • March 6,2006,which stated in part: "Taking that letter(from Richard Bussiere)at face value as fact then it appears that the use of the unit was not discontinued;that Section 104.3.1 of the Zoning Bylaw is not applicable;and that the preexisting nonconforming use as a duplex may lawfully continue without any • necessary relief from the Zoning Board of Appeals." 9. Thereafter,Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination,the Build'mg.Commissioner issued three permits: a)March 21,2006-to allow demolition of the garage apartment;b. March 31,2006—to allow construction of foundation;and c.April 19,2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy was issued on December 19,2006. 4 Y .. 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A,Section 15. 14. Thereafter froth 2006 to 2008,an abutter,Richard Shea,communicated with • Richard Bussiere and receiveda series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. • 15. The abutter,Mr.Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16,2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William • Marasco"to provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use"or"file a variance petition with the Zoning Board of • Appeals." • • • 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11,2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals pursuant to the provisions of M.G.L.Chapter 40A, Section 15 within thirty(30)days,and further,indicated that the failure to take action within thirty(30)days will result in . appropriate zoning enforcement action which may include the issuance of tickets with fines of up to$300.00 per day. A copy of the August 11,2009 letter is attached hereto • and marked Exhibit A. • • 1 5 18. Marasco appealed the Order and the matter was heard by the Zoning Board of'. Appeals at a Public Hearing on December 10,2009 and a continued Public Hearing on January 28,2010. At the January 28,20W Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2,2010. A certified copy of said Decision is attached hereto and marked Exhibit B. ' 19. The Building Commissioner's letter dated August 11,2009 and letter dated July 16,2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter;Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L. Chapter 40A, Section 15 provides that: "Any appeal under Section 8 to a permit granting authority shall be taken within thirty(30)days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke,or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2,2009 is illegal, arbitrary,capricious, contrary to law and not based on substantial facts. Said Decision is an abuse of discretion and is in excess of the Board's authority. 6 • WHEREFORE,the Plaintiff,William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiff's Appeal is in excess of their authority,in violation of law, arbitrary,capricious,is an abuse of discretion,is not based on substantial facts and plainly wrong. 2. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated July 16,2009 and August 11,2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, C umphreys,P Y , q 15 Brook Street Cohasset,MA 02025 (781)383-0600 ' BBO No.:244200 Dated: February 11,2010 7 124 ot.r4 TOWN OF YARMOUTH }- r 'z -i BUILDING DEPARTMENT 0 f - C 1146 Route 28,South Yarmouth,MA 02664 P ? P.c .� . 4 6 0 508.• /3M9�/8-22381 ext.261 Fax 508-398-0836 EXHIBIT ...�f rivri f ..y.�„y. August II,2009 Dr. William Marasco 143 River Street • South Yarmouth, MA 02664 Re: 143 River Street • • 1 Dear Dr. Marasco: • This is to serve as a follow-up to my July 16.2009 letter,our subsequent phone conversation,and your August 10,2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation,Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or • "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. • Based on this;you are again ordered to take the action stated. You also have the right to appeal • this order to the Zoning Board of Appeals,pursuant to the provisions of MGL Chapter 40A,Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement • action, which may include the issuance of tickets with fines of up to$300 per day. • So Ordered, cick • • Brandolini,C.B.O. Building Commissioner • cc:Zoning Board of Appeals • •f 4'.0 ''4'p TOWN OF YARMOUTH A BOARD OF APPEALS I teDECISION %, t � m < EXHIBIT S . (:-) ` == n FILED WITH TOWN CLERK: February 2,2010 I ;e= %. PETITION NO: #4268 HEARING DATE: October 22,2009;December 10,2009 and January 28,2010 PETITIONER: William Marasco PROPERTY: 143 River Street, South Yarmouth Map&Parcel: 0034.282 Zoning District: RS40 Book&Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky,David Reid,Debra Martin and Bryant Palmer,Alternate. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register,the hearing opened and held on the date stated above. The Petitioner, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street, South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that,in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him. dated 07/16/09 and the follow-up correspondenceof the Building Commissioner, Mr.James Brandolini, dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. 1 The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the course of two appearances, Counsel for the applicant and Special Town Counsel each provided •, the Board with *ell thought-out and often persuasive argument on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought, this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Samosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. 92)Steven D oung-Chaff t VI 14 4 •r d4o TOWN OF YARMOUTH i' j`'/'� OFFICE OF THE TOWN CLERK • ' I Ih : '3 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 liCorg TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC February 23, 2010 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Department Docket No. 10 MISC 422617 William Marasco Plaintiff VS Members of Yarmouth Zoning Board of Appeals, received February 12, 2010, with a follow up, Please feel free to contact me if you have any questions or need any more information. Respectfully yours, JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Town Clerk Cc: Robert C. Lawton, Jr. Town of Yarmouth Board of Appeals James Brandolini4 File t/ O 0 J %eet c9ah44e4,10.1addetaftW i- 02045" Ter(781)383-0600 Fax(781)383-2734 cjhlaw@comcast.net m .71 CERTIFIED MAIL RETURN RECEIPT REQUESTED NO. 7003 1010 0005 2780 9582 11 --- _ u :L" February 22, 2010 C' "' ' Town Clerk Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: William Marasco v. Steven DeYoung,Member of the Town of Yarmouth Zoning Board of Appeals et al Land Court Case No. 10 MISC 422617 Dear Sir/Madam: In accordance with General Laws Chapter 40A, Section 17, notice is hereby given of a Complaint filed with the Land Court on February 12,2010 relative to the above referenced matter. Enclosed is a copy of the Complaint. Very truly yours, Ck \ , tm1114 ys • Charles J. Humphreys, Esquire Yik CJH:epm Enclosures 1: COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. LAND COURT DEPARTMENT el DOCKET NO. /0'misG `taao / ) WILLIAM MARASCO, ) ) ---1 � > Plaintiff ) r"_� ) Ni V. ) •� w ', STEVEN DeYOUNG,SEAN IGOE, ) COMPLAINT = U vL JOSEPH SARNOSKY, DAVID REID, ) "' DEBRA MARTIN and BRYANT ) PALMER,as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A,Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth,Barnstable County, Massachusetts, denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner. • PARTIES 1. The Plaintiff, William Marasco,is an individual with an address of 143 River Street, South Yarmouth,Massachusetts 02664(hereinafter referred to as"Marasco"). • . r. 2. The Defendants, Steven DeYoung, 691 Willow Street, South Yarmouth, Massachusetts 02664; Sean Igoe,223 South Sea Avenue, West Yarmouth,Massachusetts 02673; Joseph Samosky, I11 Merchant Avenue, Yarmouth Port, Massachusetts 02675; David Reid, 1292 Route 28, South Yarmouth,Massachusetts 02664;'Debra Martin, P.O. Box 320, South Yarmouth,Massachusetts 02664; and Bryant Palmer, 66 Traders Lane, West Yarmouth,Massachusetts 02673,who are not named individually but are named as Members of the Yarmouth Zoning Board of Appeals (hereinafter collectively referred to as the "Board"). 3. The Defendant,the Town of Yarmouth, is a municipal corporation,with a place of business at Yarmouth Town Hall, 1146 Route 28, South Yarmouth,Massachusetts 02664(hereinafter referred to as the"Town"). STATEMENT OF FACTS 1. The Plaintiff,Marasco,is the owner of a two-family residence located at 143 River Street, South Yarmouth,Barnstable County,Massachusetts 02664. Said parcel contains 21,780 sq. ft. of land and is located in an RS 40 Zoning District. 2. Marasco purchased the property on November 29, 2001 from the Coughlin Family Trust,Richard Bussiere,Trustee. At the time of purchase the property consisted of a dwelling house with an attached garage apartment. Further,at the time of purchase the house and garage apartment were fully furnished. In 2001 and every year thereafter to the present,Marasco has applied for and received a rental permit and has rented and continues to rent the apartment to third parties. • _0 —1 Fri `;; ;7 2 C) .3 • C] v . � 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005,Marasco contacted James D. Brandolini,Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3, 2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney,opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot area for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexisting nonconforming use. 7. In March 2006, the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s. ' —1 1a/ ' • 3 l -., vt 8. After receiving correspondence from Richard Bussiere,Trustee of the Coughlin Family Trust, with regard to use and after receiving an opinion from Town Counsel dated March 6,'2006, which stated in part: "Taking that letter(from Richard Bussiere) at face value as fact then it appears that the use of the unit was not discontinued;that Section 104.3.1 of the Zoning Bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 9. Thereafter,Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination,the Building Commissioner issued three penults: a)March 21,2006—to allow demolition of the garage apartment;b. March 31,2006—to allow construction of foundation; and c.April 19,2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy --1 was issued on December 19,2006. • p.+/ n ..L i 4 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A, Section 15. 14. Thereafter from 2006 to 2008, an abutter,Richard Shea,communicated with Richard Bussiere and received a series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. 15. The abutter,Mr. Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16,2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William Marasco"to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or"file a variance petition with the Zoning Board of Appeals." 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11,2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals pursuant to the provisions of M.G.L.Chapter 40A, Section 15 within thirty(30)days,and further, indicated that the failure to take action within thirty(30)days will result in appropriate zoning enforcement action which may include the issuance of tickets with fines of up to$300.00 per day. A copy of the August 11,2009 letter is attached hereto 1 ._r and marked Exhibit A. ' f' -1 } N 5 18. Marasco appealed the Order and the matter was heard by the Zoning Board of Appeals at a Public Hearing on December 10,2009 and a continued Public Hearing on January 28,2010. At the January 28,2010 Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2,2010. A certified copy of said Decision is attached hereto and marked Exhibit B. 19. The Building Commissioner's letter dated August 11,2009 and letter dated July 16,2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter,Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L.Chapter 40A, Section 15 provides that: "My appeal under Section 8 to a permit granting authority shall be taken within thirty(30)days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke,or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2,2009 is illegal, �7 ---1 arbitrary,capricious, contrary to law and not based on substantial facts. Said Decision is i T�. N.) an abuse of discretion and is in excess of the Board's authority. • NJ 6 • WHEREFORE,the Plaintiff, William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiffs Appeal is in excess of theft authority,in violation of law, arbitrary,capricious,is an abuse of discretion,is not based on substantial facts and plainly wrong. • 2. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated July 16,2009 and August 11,2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under • the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, C • . umphre�uire 15 Brook Street Cohasset,MA 02025 (781)383-0600 BBO No.:244200 • Dated: February 11,2010 _u • —I • • ra .--� Li . ° -:i In .I_ 7 ` _ o • RTOWN OF YARMOUTH ,� �= o BUILDING DEPARTMENT p -,+'Si B 4y 1146 Route 28,South Yarmouth,MA 02664 PI r ^A my a 508-398.2231 ext.261 Fax 508-398-0836 o- EXHIBIT A''''Irer-71 August 11, 2009 Dr. William Marasco 143 River Street South Yarmouth,MA 02664 Re: 143 River Street Dear Dr.Marasco: This is to serve as a follow-up to my July 16,2009 letter, our subsequent phone conversation,and your August 10,2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this;you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals,pursuant to the provisions of MGL Chapter 40A, Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action, which may include the issuance of tickets with tines of up to$300 per day. So Ordered, Attu. Brandolini,C.B.O. Building Commissioner 1117 1-; "D cc: Zoning Board of Appeals 4J - I t-n ' N Alet 47' p �+' TOWN OF YARMOUTH C BOARD OF APPEALS 7• DECISION• m �-t • EXHIBIT I FILED WITH TOWN CLERK: February 2,2010l..�l �� o. iC PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco 1i1 2 i PROPERTY: 143 River Street, South Yarmouth I Map& Parcel: 0034.282 Zoning District: RS40 Book& Page: 22686/215 i = ri ••-t MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph .)s Sarnosky,David Reid,Debra Martin and Bryant Palmer,Alternate. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register, the hearing opened and held on the date stated above. The Petitioner, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street,South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that, in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him dated 07/16/09 and the follow-up correspondenceof the Building Commissioner,Mr. James Brandolini, dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming,two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. 1 . '-'. The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the . , course of two appearances, Counsel for the applicant and Special Town Counsel each provided the Board with well thought-out and often persuasive argument on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought,this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Sarnosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Steven Doung-Chair Dj (_11 ;. LA) Lei 2 Page l of 1 �w Clark, Sandi From: Hartsgrove, Elizabeth Sent: Monday, March 08, 2010 1:56 PM To: Clark, Sandi; 'ssd@wilkinsanddeyoung.com' Subject: W. Marasco Attachments: D00O24.PDF FYI - Please see the attached info regarding Counsel representation on the W. Marasco litigation. Thank you! -Liz Elizabeth G. Hartsgrove Executive Assistant to the Town Administrator Town of Yarmouth 1146 Route 28 South Yarmouth,MA 02664 508-398-2231 ext. 1271 508.398-236.5(fax) elta rtsgrove@9a rmoutk.ma.u s ®Please consider the environment before printing this e-mail. 3/8/2010 r • RUBIN, RUDMAN, CHAMBERLAIN AND MARSH CAPE COD OFFICE OF RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 99 WILLOW STREET • POST OFFICE Box 40 • YARMOUTHPORT, MASSACHUSETTS 02675.0040 (508) 362.6262 • FACSIMILE: (508) 362.6060 ROBERT C. CHAMBERLAIN PAMELA B. MARSH SO ROWER WHARF THOMAS J. PERRINO BOSTON, MASSACHUSETTS 02110 JENNIFER N. LUCAS 7727..0 (617) 330.7000 .1011114 2010 O J1f'March 4, 2010 cIIl .±JJBIOR Deborah J. Patterson, Recorder Land Court Department 226 Causeway Street Boston, MA 02114 RE: WILLIAM MARASCO VS. STEVEN DEYOUNG, SEAN IGOE, JOSEPH SARNOSKY, DAVID REID, DEBRA MARTIN AND BRYANT PALMER, AS THEY ARE MEMBERS OF THE TOWN OF YARMOUTH ZONING BOARD OF APPEALS, AND THE TOWN OF YARMOUTH DOCKET NO. 10 MISC 422617 OUR FILE NO. 11274-027 (906-10/12015) Dear Ms. Patterson: In connection with the above-referenced matter, enclosed please find a Notice of Appearance. Thank you for your time and attention to this matter. Please be sure to call me should you have any questions. Very truly yours, RUBIN, RUDMAN, CHAMBERLAIN AND MARSH Thomas J. Perrino TJP:rtp Enclosure cc: Charles J. Humphreys, Esq. w/encl . Mr. Robert C. Lawton, Administrator w/encl. 1114962 ji • t COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. LAND COURT DEPARTMENT DOCKET NO. 10 MISC 422617 WILLIAM MARASCO, ) Plaintiff ) VS. ) STEVEN DeYOUNG, SEAN IGOE, ) JOSEPH SARNOSKY, DAVID REID, ) DEBRA MARTIN and BRYANT ) PALMER, as they are Members ) of the Town of Yarmouth ) Zoning Board of Appeals, ) and the TOWN OF YARMOUTH, ) Defendants ) NOTICE OF APPEARANCE TO THE CLERK OF THE ABOVE-NAMED COURT: Please enter my appearance as attorney for the defendants, Steven DeYoung, Sean Igoe, Joseph Sarnosky, David Reid, Debra Martin and Bryant Palmer as they are Members of the Town of Yarmouth Zoning Board of Appeals and the Town of Yarmouth in the above-captioned civil case. By their attorney, Thomas J. Perrino RUBIN, RUDMAN, CHAMBERLAIN AND MARSH 99 Willow Street, P. 0. Box 40 Yarmouthport, MA 02675-0040 (508) 362-6262 RUBIN,RUDMAN, BBO#5552 97 CHAMBERLAIN AND MARSH CAPE COD OFFICE DATED: March 4, 2010 OF RUBIN AND RUDMAN LLP COUNSELLORS AT LAW 99 WILLOW STREET POST OFFICE Box 40 YARMOUTHPORT,MA 11144971 02675-0040 — (508)762-6262 FACSIMILE:(508)762-6060 t CERTIFICATE OF SERVICE I, Thomas J. Perrino, hereby certify that I have this day mailed, postage pre-paid, a copy of the foregoing Notice of Appearance to the following attorney of record: Charles J. Humphreys, Esq. 15 Brook Street Cohasset, MA 02025 Thomas J. Perrino RUBIN, RUDMAN, CHAMBERLAIN AND MARSH 99 Willow Street, P. 0. Box 40 Yarmouthport, MA 02675-0040 (508) 362-6262 BB0#555297 DATED: March 4, 2010 RUBIN,RUDMAN, .. .,. CHAMBERLAIN AND MARSH CAPE COD OFFICE OF RUBIN AND i RUDMAN LLP COUNSELLORS AT LAW 99 WILLOW STREET POST OFFICE BOX 40 YARMOUTNPORT,MA - - - • 02675-0040 -2 (508)3626262 FACSIMILE:(501)362-6060 • RECEIVED MAR 8 2010 YARMOUT H BOARD OF APPEALS IP sy°1"YN TOWN OF YARMOUTH (•h••' A C OFFICE OF THE TOWN CLERK d — (P1,r" : 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 ,,,,, g. TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC February 23, 2010 • Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Department Docket No. 10 MISC 422617 William Marasco Plaintiff VS Members of Yarmouth Zoning Board of Appeals, received February 12, 2010, with a follow up, Please feel free to contact me if you have any questions or need any more information. Respectfully yours, JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Town Clerk Cc: Robert C. Lawton, Jr. Town of Yarmouth Board of Appeals James Brandolini File 4 } RECEIVED • FEB 232010 VAR O BOARD FAPPEALS ip 4 / • Q /3 ad Othee4 Cayera,Vdtedd¢efacte d ono Tel1781)383-0600 Fax(781)383-2734 cjhlaw@comcast.net �7ci —t III n n -33 CERTIFIED MAIL El "w' - RETURN RECEIPT REQUESTED = l NO. 7003 1010 0005 2780 9582 - —_' , --i i7Z February 22,2010 `" ." Town Clerk Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: William Marasco v. Steven DeYoung,Member of the Town of Yarmouth Zoning Board of Appeals et al Land Court Case No. 10 MISC 422617 Dear Sir/Madam: In accordance with General Laws Chapter 40A, Section 17,notice is hereby given of a Complaint filed with the Land Court on February 12, 2010 relative to the above referenced matter. Enclosed is a copy of the Complaint. Very truly yours, C� \Aug* " 5 Charles J. Humphreys, Esquire /ei3k CJH:epm Enclosures Jr ,; a • COMMONWEALTH OF MASSACHUSETTS BARNSTABLE,ss. LAND COURT DEPARTMENT DOCKET NO. /0 rt I Sc. efaa.4019 ) WILLIAM MARASCO, ) Plaintiff ) : r " - r—') _; )) STEVEN DeYOUNG, SEAN IGOE, ) COMPLAINT 3 = vL JOSEPH SARNOSKY,DAVID REID, ) _ DEBRA MARTIN and BRYANT ) PALMER,as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A,Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth,Barnstable County, Massachusetts, denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner. PARTIES 1. The Plaintiff, William Marasco,is an individual with an address of 143 River Street, South Yarmouth,Massachusetts 02664 (hereinafter referred to as"Marasco"). 2. The Defendants, Steven DeYoung, 691 Willow Street, South Yarmouth, Massachusetts 02664; Sean Igoe,223 South Sea Avenue, West Yarmouth,Massachusetts 02673;Joseph Samosky, 111 Merchant Avenue, Yarmouth Port,Massachusetts 02675; David Reid, 1292 Route 28, South Yarmouth,Massachusetts 02664; Debra Martin,P.O. Box 320, South Yarmouth,Massachusetts 02664; and Bryant Palmer, 66 Traders Lane, West Yarmouth,Massachusetts 02673,who are not named individually but are named as Members of the Yarmouth Zoning Board of Appeals(hereinafter collectively referred to as the`Board'). 3. The Defendant,the Town of Yarmouth, is a municipal corporation,with a place of business at Yarmouth Town Hall, 1146 Route 28, South Yarmouth,Massachusetts 02664(hereinafter referred to as the"Town'). STATEMENT OF FACTS: 1. The Plaintiff,Marasco,is the owner of a two-family residence located at 143. River Street, South Yarmouth,Barnstable County, Massachusetts 02664. Said parcel contains 21,780 sq. ft. of land and is located in an RS 40 Zoning District. 2. Marasco purchased the property on November 29, 2001 from the Coughlin Family Trust,Richard Bussiere, Trustee. At the time of purchase the property consisted of a dwelling house with an attached garage apartment. Further, at the time of purchase the house and garage apartment were fully furnished. In 2001 and every year thereafter to the present,Marasco has applied for and received a rental permit and has rented and continues to rent the apartment to third parties. FT]2 ) II w O 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005,Marasco contacted James D.Brandolini,Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3, 2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney,opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot area for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexisting nonconforming use. 7. In March 2006,the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s. -) 3 • i7 v �- ( :.1 T'1 3 A 8. After receiving correspondence from Richard Bussiere,Trustee of the Coughlin Family Trust,with regard to use and after receiving an opinion from Town Counsel dated March 6,2006,which stated in part: "Taking that letter(from Richard Bussiere) at face value as fact then it appears that the use of the unit was not discontinued;that Section 104.3.1 of the Zoning Bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 9. Thereafter, Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination,the Building Commissioner issued three permits: a)March 21,2006—to allow demolition of the garage apartment; b. March 31,2006—to allow construction of foundation; and c.April 19,2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy • --1 t _ i J was issued on December 19,2006. j. ...� _ • -11 = L 4 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A, Section 15. 14. Thereafter from 2006 to 2008,an abutter,Richard Shea, communicated with Richard Bussiere and received a series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. 15. The abutter,Mr. Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16, 2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William Marasco"to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or"file a variance petition with the Zoning Board of Appeals." 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11,2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals pursuant to the provisions of M.G.L. Chapter 40A, Section 15 within thirty(30)days,and further, indicated that the failure to take action within thirty(30)days will result in appropriate zoning enforcement action which may include the issuance of tickets with fines of up to$300.00 per day. A copy of the August 11,2009 letter is attached hereto and marked Exhibit A. Fri i LJ fl -H i`..-J It. _U j: N 5 • 18. Marasco appealed the Order and the matter was heard by the Zoning Board of Appeals at a Public Hearing on December 10,2009 and a continued Public Hearing on January 28,2010. At the January 28,2010 Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2, 2010. A certified copy of said Decision is attached hereto and marked Exhibit B. 19. The Building Commissioner's letter dated August 11,2009 and letter dated July 16,2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter,Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L.Chapter 40A, Section 15 provides that: "Any appeal under Section 8 to a permit granting authority shall be taken within thirty(30)days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke, or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2,2009 is illegal, o --1 arbitrary, capricious, contrary to law and not based on substantial facts. Said Decision is 1 �:� Q.�l '..:J ..•.J an abuse of discretion and is in excess of the Board's authority. „: r NJ 6 a S WHEREFORE,the Plaintiff,William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiff s Appeal is in excess of their authority, in violation of law, arbitrary, capricious,is an abuse of discretion,is not based on substantial facts and plainly wrong. 2. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated • July 16,2009 and August 11,2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, . 'umphreys,Esquire 15 Brook Street Cohasset,MA 02025 (781)383-0600 BBO No.:244200 Dated: February 11,2010 rJ w ) CJ _:J tri 7 /,`' a•YA�4 TOWN OF YARMOUTH • �' ,iz o BUILDING DEPARTMENT .,a' +s e , P J11AV ,r•Ft i - 4y 1146 Route 28,South Yarmouth,MA 02664 F! A r % �� 508-398-2231 ext.261 Fax 508.398-0836 EXHIBIT AT-..-n^s,:s;.a—• August II, 2009 Dr. William Marasco 143 River Street South Yarmouth, MA 02664 Re: 143 River Street Dear Dr. Marasco: This is to serve as a follow-up to my July 16,2009 letter, our subsequent phone conversation,and your August 10,2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this;you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals,pursuant to the provisions of MGL Chapter 40A,Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action, which may include the issuance of tickets with fines of up to$300 per day. So Ordered, 1aig.. Brandolini,C.B.O. Building Commissioner C7 cc: Zoning Board of Appeals ? o I _Ll 4.l • 1 . ' r r_. I -.J N .., y d+' TOWN OF YARMOUTH O-- � y BOARD OF APPEALS DECISION ,t, k. • i EXHIBIT my C) O • FILED WITH TOWN CLERK: February 2,2010 (��1 PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco `l ni ;g ( PROPERTY: 143 River Street, South Yarmouth [-I" Map& Parcel: 0034.282 Zoning District: RS40 Book&Page: 22686/215 = .-1 -1 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph �` Sarnosky,David Reid,Debra Martin and Bryant Palmer,Alternate. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register,the hearing opened and held on the date stated above. The Petitioner, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street, South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that, in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him. dated 07/16/09 and the follow-up correspondence of the Building Commissioner,Mr. James Brandolini,dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. 1 .. •;' The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the •` course of two appearances, Counsel for the applicant and Special Town Counsel each provided • the Board with well thought-out and often persuasive argument on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought, this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of.the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two(2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Samosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Steven Dol•Y ung-Chairc • rn ; C.) - DJ � N { CD I ' HJT N 2 • Ja git ©%ee4 9odaaae4 W d4ezczawf, Onel ?e((781)383-0600 Sax(781)383-2734 cj(ifaw@comcast.net February 22, 2010 Zoning Board of Appeals Town of Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: William Marasco v. Steven DeYoung,Member of the Town of Yarmouth Zoning Board of Appeals et al Land Court Case No. 10 MISC 422617 Dear Sir/Madam: • Enclosed you will find a copy of the Notice of Judge and Track Assignment for the above captioned case. Thank you. Very truly yours, Cites b-te^P .,5 Charles J. Humphreys, Esquire CJH:epm Enclosures • • RECEIVED FEB 2 3 2010 YARMOUT;i BOARD OF APPEALS COMMONWEALTH OF MASSACHUSETTS • LAND COURT DEPARTMENT OF THE TRIAL COURT 226 Causeway Street Boston,MA 02114 Tel: 617-788-7470 February 17, 2010 Charles J Humphreys Esq. • Law Office Of Charles J. Humphreys • 15 Brook Street Cohasset,MA 02025 Case No.: 10 MISC 422617 Case Name: William Marasco v.Steven DeYoung Member of the Town of Yarmouth Zoning Board of Appeals et al NOTICE OF JUDGE AND TRACK ASSIGNMENT 1. Please be advised that the above entitled case has been assigned to Hon.Judith C. Cutler,whose Sessions Clerk is Emily Rosa at 617-788-7419. 2. The case has been assigned to the"F"Track,pursuant to Land Court Standing Order 1-04. A copy of the presumptive deadlines applicable to the Average"A" • and the Fast."F"Tracks are enclosed for your information. Please be sure to serve any and all defendant(s)in this action as soon as possible. Failure to serve the defendant(s)timely under Mass. R. Civ. P. 4(j)may result in dismissal. 3. You are responsible for sending a copy of this notice and the presumptive deadlines to the defendant(s). Very truly yours, Deborah J.Patterson Recorder K'LANDCOURTFORMSWC169.DOC 7D:10/6/04 2/17!20101:49 PM 1ofl • • TIL4CKINGSCHEDULE- TaTRACK(FAST) For all cases afforded priority by statute inclnri;ng G.L. c. 40A, § 17; c. 40B; and c. 41, § 81BB; Specific Performance under G. L. c. 184 § (1)(k); Partition under G. L. c. 241. Please consult complete time standards promulgated as Land Court Standing Order 1:04 for further details,available on the Court's website http://mass.gov/courtsandiudrres/courts/landcourtimdex.html • Three Months (90 days) • Service completed on all parties. • • Case Management Conference held. • Early Intervention Event held pursuant to SJC Uniform Rules on Dispute Resolution, Rule 1:18. Six Months (180 days) • Discovery. Seven Months (210 days) • Dispositive motions under Mass. R. Civ.P. 12(b)(1); 12(b)(6); 12(c); and 56, filed and served with supporting memoranda and affidavits: Eight Months(240 days) • Dispositive motions responses filed and sewed. Nine Months (270 days) • Dispositive motions heard(reply briefs filed ten (10) days prior to hearing). . • Thirteen Months (390 days) • Case assignment for pre-trial conference;joint pre-trial memorandum filed on week prior to conference., Fourteen Months (420 days) • • Pre-trial conference held(mandatory attendance); firm trial date set Sixteen Months (480 days) • Trial held Eighteen Months (540 days) ' • • Transcripts filed with the Court Nineteen Months(570 days) • Post-trial briefs filed COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT TRA C 1JVC SCHEDULE- 4 'TRACK(A VERA GE) For all cases not otherwise assigned to the Fast Track or Tax Track Original registration and confirmation cases under G.L. c. 185, are included within the'A• Track commencing on the date when thesummons or citation issues. Please consult complete time standards,promulgated as Land Court Standing Order 1:04 for further details, available on the Court's website- http://naass.govicourtsandiudges/courts/landcourt/index.html Three Months (90 days) • Service completed on all parties. • Case Management Conference held. • Early Intervention Event held pursuant to SIC Uniform Rules on Dispute Resolution, Rule 1:18. Sixteen Months (480 days) • Discovery. Eiehteen Months (540 days) • Dispositive motions under Mass. R Civ. P. 12(bx1); 12(b)(6); I2(c); and 56, filed and served with supporting memoranda and affidavits. • Nineteen Months (570 days) • Dispositive motions responses filed and served. Twenty Months (600 days) • • Dispositive motions heard, (reply briefs filed ten(10) days prior to hearing). Twenty-Seven Months (810 days) • " Case assigned for pit-trial conference:joint pre-trial memorandum filed one week prior to conference. Twenty-EIeht Months (840 days) • he-trial conference held(mandatory attendance);firm trial date set. Thirty-One Months(930 days) • Trial held. Thirty-Three Months (990 days) • Transcripts filed with the Court. Thirty-Four Months (1020 days) • Post-trial briefs filed. • ' . I .+1 p a.+.. .w. ..9i•a...t i .:,�* .._. ' Wyk J. DOUGLAS MURPHY COUNSELOR AT LAW 243 South Street Lock Drawer M Hyannis,Massachusetts 02601-1412 Telephone:508-775-3116 • Facsimile:508-775-3720 • Email:jd.murphy@verizon.net Please reply our File Na • January 22, 2010 Steven DeYoung, Esquire Chairman, Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth, MA 02664-4451 Re: Petition No 4268: William Marasco seeking to reverse the decision of the Building Inspector dated July 14,2009 Dear Mr. DeYoung: Enclosed is a hard copy of the letter and enclosures emailed to you on January 21, 2010. Very truly yours, 4t61Linda M. Saunders Legal Assistant to J. Douglas Murphy /lens Enclosures RECEIVED JAN 2 5 2010 1 YARMOUTH BOARD OF APPEALS J. DOUGLAS MURPHY COUNSELOR AT LAW 243 South Street Lock Drawer M Hyannis,Massachusetts 02601-1412 Telephone: 508-775-3116 • Facsimile: 508-775-3720 • Email:Jd.murphy@verizon.net Please reply our File No. January 21, 2010 Steven DeYoung,Esquire Chairman,Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth,MA 02664-4451 Re: Petition No.4268:William Marasco seeking to reverse the decision of the Building Inspector dated July 14,2009 Dear Attorney DeYoung: Pursuant to your request following up on the December 10, 2009 Hearing of the Zoning Board of Appeals concerning the above captioned matter,I submit this Memorandum for the Board's consideration. I construe the requested input to be directed to the issue of the Building Commissioner's authority to take action once a building permit has issued,and not as an invitation to brief the merits of entire subject matter i.e. the Applicant's alleged entitlement to alter and continue an otherwise unlawful non-conforming two family dwelling and duplex use referred to in Appeal No. 4268. Nevertheless,it is difficult to address the limited issue without expanding into the history and the basis upon which the Building Commissioner took the action which he took; and furthermore whether or not there is an appealable "decision" or"order"before the Board which is within the jurisdiction of the Board to revoke. The current Hearing was precipitated by an application (the "Application") of William Marasco(the"Applicant"),a resident at 143 River Street, South Yarmouth,Massachusetts 02664 seeking to have the Board reverse a decision of the Building Inspector dated July 14, 2009. The Application identifies the"Decision"appealed from as that"dated 7-14-09". However,the primary focus of attention has been upon a letter generated by Building Commissioner James D.Brandolini, C.B.O. (The"Commissioner") dated July 16,2009 and addressed to "Dr. William Marasco, 143 River Street, South Yarmouth, MA 02664, Re: 143 River Street" (the "Letter"). Secondarily, the Board inquired into the issues and distinctions involving"discontinuance"versus"abandonment" of a lawful,pre-existing non-conforming structure or use and so this memorandum addresses those issues as well. 1 The asserted reasons advanced by the Applicant in support ofa reversal are:"Building Permit issued pre-existing,non-conforming two-family still valid". In view of the forgoing, I shall focus the attention of this Memo upon four issues, seriatim: 1. Whether discontinuance of a lawful,pre-existing non-conforming structure or use any longer requires an intention to abandon; 2. Whether the Commissioner possesses the authority,pursuant to Section 7 of Chapter 40A, and following the issuance of a building permit by an individual duly authorized to issue such permits,to impose further validation requirements or even to rescind or revoke the permit and/or issue a cease and desist order to preclude further use or to dissemble that which has been constructed pursuant to the permit. 3. Whether or not the Applicant should be estopped from bringing an Appeal based upon his Application 4. Whether the Application Brings the Letter, or Any Appealable Order or Decision Before This Board As An Appeal Under Section 8; I ask the Board to take administrative notice that the Building Commissioner occupies the position formerly designated as the Building Inspector,and he is the zoning enforcement officer and . the chief of the Building Department,charged with enforcing the Building Code and the Zoning By- law. STATEMENT OF PERTINENT FACTS The present dispute involves a residential property located at 143 River Street, South Yarmouth, (the"Premises")in an RS40 Residential Zoning District. The Premises are shown on Yarmouth Assessor's Map 0034 as Parcel No. 282 and the title reference is Barnstable County Registry of Deeds Book 22686, Page 215, all according to the Application filed with the Zoning Board of Appeals (and clocked in by the Town Clerk on August 13,2009) as Appeal No. 4268. The Premises are an improved corner lot,surrounded on three sides byways;on the west and north by Bass River Parkway and on the east by River Street.The dimensions of the Applicant's lot are disclosed generally on the Assessors maps,but more particularly on the Plan recorded in Plan Book 62,Page 151 (the"Plan")at the Barnstable County Registry of Deeds(copy attached),where the Premises are shown as Lot 3A. The RS40 Zoning District requires a minimum 40,000 square feet lot with a minimum 150 feet frontage, a minimum front yard setback of 30 feet,side and rear yard setbacks of 20 feet and a 2 maximum lot coverage of 25%(By-law Section 203.5). In addition,lot width must equal or exceed the lot frontage requirement,i.e.in this case 150 feet for a depth of at least 100 feet(By-law Section 203.5 H.);and as a corner lot,the Premises must have at least 100 feet of frontage on each of the other abutting streets. (By-law Section 203.5 F.) The Plan discloses that the Premises comprises an undersized lot of but 24,275 square feet which may exceed the minimum frontage requirement on the north (fronting upon Bass River Parkway)and on the easterly River Street but appears to fail the 100 foot minimum frontage test on the westerly facing Bass River Parkway frontage. Also, Section 203.5 C. Of the By-law requires that lots for two family dwellings must be twice the normal minimum lot size of the District, i.e. in this case a minumum lot size of 80,000 square feet. It would appear(based on the Application,representations made at the hearing and records at the Barnstable County Registry of Deeds)that the Applicant initially acquired the Premises in his own name,by deed dated November 29,2001 and recorded the following day in Book 14509,Page 192. Subsequently, by deed dated February 15, 2008 and recorded on February 21, 2008, the Applicant conveyed the Premises for nominal consideration,to Northstar Properties Management, LLC, having an address of 21 Aaron's Way, West Yarmouth, per deed recorded in Book 22686, Page 215. The Applicant asserts that he relied in good faith upon the appearance of the Premises prior to his purchase in 2001 to determine there was satisfactory and adequate evidence that it was a lawful,pre-existing,non-conforming duplex structure. • The testimony,records of the Building Commissioner's office and Zoning By-Law provide compelling evidence that,in addition to the non-conforming use as a duplex,the existing structure is non-conforming in at least two dimensional respects(lot size and lot frontage). The records at the Bamstable County Registry of Deeds disclose that prior to the Applicants acquisition of the Premises, they had been continuously owned by(or legal title had been held in trust for the benefit of)Edward L.Coughlin and his family since June of 1968 (Deed at Book 1404, Page 495). Prior to the Coughlin ownership,the Premises appear to have been continuously owned by one Dorothy Farrar from May 23, 1952. Mr.Coughlin died in 1972,survived by siblings and leaving the Premises to Cape Cod Bank and Trust Company, as Trustee, in trust for the benefit of the siblings. As Trustee,the Bank(and its employees acting in its behalf)had a fiduciary obligation and 3 duty to secure,protect and manage the property for the benefit of the beneficiaries during the entire term of Trusteeship. Thus the Trustee had a legal obligation to maintain an awareness of the condition and use of the property. The Bank Officer charged with performing these fiduciary obligations on behalf of the Bank was, according to correspondence from him,Richard Bussiere. The Applicant has introduced no percipient evidence contradicting the historical facts provided by Mr. Bussiere and substantiated in large measure by several abutters,including Dr. and Mrs. Richard W. Shea and the Honorable Richard Staff, a neighbor and attorney for the Coughlin family who offered testimony at the public Hearing. The testimony of abutters and neighbors, including those who had actual access to the Premises and counseled the Coughlin family,was that it had not been occupied as a duplex from at least 1997(and quite likely, earlier)and until the Applicant purchased the Premises in 2001. Mr. Bussiere states in correspondence addressing the issue of usage, that Mr. Coughlin's siblings informed him that Mr.Coughlin constructed the garage apartment sometime prior to 1971. It also seems clear from the correspondence provided by Richard Bussiere(in particular his letters dated November 16, 2007 (copy attached)), that a significant gap arose in any active= utilization of the rental unit.Whether or not Mr.Bussiere was vaugue or inconclusive in his earlier correspondence less than wholly forthcoming in Specifically, Mr. Bussiere alleges that "During the 90's, . . . it had not been occupied for. r: some years." Furthermore,Mr.Bussiere states that in 1997 he shut down the utilities to the apartment. He also stated that the Trustee did not anticipate using the apartment in the future. The clear and compelling implication of Mr. Bussiere's correspondence is that a discontinuance of duplex use arose and continued fora minimum of three to four years,and probably longer,prior to the Applicants purchase of the Premises in 2001. Records in the files of the Zoning Board of Appeals show that on November 6, 1967, following a public hearing on October 19, 1967(Petition No.871)the Zoning Board of appeals filed a Decision which denied an application by the then owner seeking to convert an existing three bay garage into"sleeping quarters". In its decision denying the requested zoning relief the Board discussed what existed and what was proposed. The Board noted that if the Petition was allowed it would, contrary to the then By- law, enable the construction of a"...second dwelling on a single lot" and not a duplex. There is no explicit suggestion that the "sleeping quarters" also included the addition of a kitchen and/or bathroom facilities rather than simply"sleeping quarters". Nevertheless,the Board concluded that such a result would in any case derogate from the intent and purpose of the Zoning By-Law and denied the Petition. 4 The Yarmouth Water Department records indicate that on November 2, 1967,prior to entry of the Decision in petition No. 871,a request for water service was filed with the Yarmouth Water Department bearing the notation"garage apt". On August 9, 1968 a request for water service transfer was filed and also bore the notation"garage apt". Recall that the Premises were purchased by Coughhlin in June of 1968. Extensive research and review of the records of the Building Commissioner's Office reveals no Building Permit nor Occupancy Certificate issued between November 6, 1967 (the date of the Decision rejecting Petition No.871)and August 9, 1968 when the water service transfer request was filed. There is not now and there is no reason to believe that in 1967 and 1968 a Request for a transfer of water service, i.e. a change in billing name/address required approval of the Building Department or would have even triggered a notice to the Building Inspector. Nevertheless, it may be inferred from the records describing the preceding events that subsequent to November 6, 1967,the owner of the Premises,without benefit of a Building Permit, effected some form of consolidation of structure so that a converted garage and the pre-existing single family dwelling were somehow connected and thereafter appear to have constituted two living units within one structure. The legitimacy of the origination of such use is obviously suspect since the request for relief was denied in 1967 and there exists no Building Department records,nor has the Applicant proffered any such records establishing the precise date or even a general date that such structure was created • and the use initiated(However, see reference to assessors records below, suggesting such use in or about 1974). Thus,based upon the current record it is impossible to determine whether such use • complied or did not comply with the requirements of the Zoning By-Law in existence at the time the .. use and structure first arose. We do know that in March of 1971 the Yarmouth Town Meeting approved a Zoning By-Law Amendment which mandated that two-family dwellings thereafter required a minimum lot size 150% larger than the lot area required for a single-family dwelling within a given district. Furthermore, a two family dwelling could only be situated,as a matter of right,upon a lot having a minimum 125 foot lot width and a minimum 90 foot lot depth. (Note: the minimum lot size under the RS-40 Zoning District is now 40,000 square feet, with minimum frontage of 150 feet; and two family dwellings,where allowed,require twice(2x)the normal minimum lot size of the District,i.e.80,000 square feet minimum in the RS-40 District. Furthermore,the By-Law,Section 203.5H mandates a minimum lot frontage, in this case 150 feet for a depth of 100 feet.) The oldest assessor's records available indicate that the improvements located on the Premises on June 4, 1974 may have included a breeze way(described on the records as a canopy, 7 x 30 feet). The floor plans included in the assessor's records include what appears to be a 424 square foot furnished area identified as"occupancy, other-cot",and a 340 square foot garage. The narrative description of the overall property is"hse bzy gar Apt", which would seem to indicate a house,breeze way, garage and apartment. 5 On or about January 31, 2006, the Building Department received an application for a demolition and reconstruction building permit from the current Applicant. A search of the records in the Building Department failed to disclose any prior building permits or other definitive documentation for the Premises which might substantiate the historical usage as a lawful, pre- existing, non-conforming duplex structure and use. Thus, in February 2006, the Building Commissioner requested advice from Town Counsel, John Creney, to determine whether the then existing garage apartment qualified as a"lawful,pre-existing, non-conforming use" either as part of an existing duplex or as a separate detached apartment/dwelling unit, or whether zoning relief from the Zoning Board of Appeals would be necessary as a condition of issuing the requested demolition and reconstruction permits. Under date of March 6,2006 Attorney Creney responded that upon the basis of the facts then known and represented it appeared that a lawful,pre-existing, non-conforming duplex use existed and could be lawfully continued without the need for relief from the Zoning Board of Appeals. The January 31,2006 applications requested a permit to demolish the 764 square foot,pre- existing,non-conforming garage,which included a 424 square foot dwelling unit,as well as a permit to replace the demolished garage with a 1,440 square foot structure containing a two bay garage and a 1,175 square foot second floor apartment. It appears from this information, that the proposed structure exceeded the footprint of the pre-existing structure. The Building Commissioner's examination of the plans filed with the applications suggested; , that the existing structure was non-conforming for failure to meet the front setback but that the proposed structure would remedy that situation and bring the structure into compliance with all then current dimensional setbacks except lot size. Following receipt of the opinion of the Town Counsel (see above) and demolition of the existing structure, the Building Permit issued on April 19, 2006, and a Certificate of Occupancy indicating substantial completion of the reconstruction was issued on September 19, 2006. The Building Commissioner issued the permits for demolition and reconstruction in good faith reliance upon the facts represented to him and those discovered through research of Town records, as well as the opinion rendered by the Town Counsel. The demolition and building permits enabled replacement of a one story structure containing a two-car garage and single-family apartment,with a two story building housing a three-car garage and second floor apartment. On or about September of 2007 a neighborhood resident,Richard W. Shea,M.D.visited the Building Department to review the records pertinent to the Premises and to discuss the permissibility of the razing and reconstruction which had occurred on the Premises over a year earlier. Dr. Shea and his wife are the current owners of the property at 24 Bass River Parkway which is directly across the street from the Premises. Dr. Shea,by his own admission,has had intimate familiarity with the 6 Marasco property since the time it was owned by Farrar(i.e.,prior to 1968)and it appears that his mother resided at 24 Bass River Parkway from 1957 until Dr. Shea and his wife took title in 1974. Subsequent to September 2007,Dr.Shea made several visits to the Building Department and reviewed records and discussed the context and legalities of the 2006 demolition and reconstruction, as well as the historic use of the Premises. It was not until June of 2008 that Dr. Shea shared copies of certain correspondence between himself and Richard Bussiere at TD Banknorth(successor to Cape Cod Bank and Trust Company, Trustee). Dr. Shea challenged the continuing use of the Premises as a duplex,alleging that such use had terminated prior to acquisition of the Premises by the Applicant, as a result of non-use. It was not until such time, June of 2008, that through the Bussiere correspondence some more definitive information pertaining to the usage (and non-usage)of the Premises between 1972 and 2001 was presented to and reviewed by the Commissioner. The records pertaining to the Premises, supplemented by Mr. Bussiere's correspondence suggest in compelling fashion,that the Premises constitute a non-conforming lot for both single and two-family use,that may have been converted to duplex use at some indeterminate date,when such use may or may not have been lawful; but that any such use was abandoned and discontinued for: more than two years prior to the resurrection of such use by the applicant sometime after 2001. • It is a basic principal of zoning that structures and uses must conform to current zoning requirements unless they are the subject of some exception as a pre-existing structure or use,or after, -. receiving variance or special permit relief pursuant to the authority granted by the Statute and By-law to the Board of Appeals, when the circumstances warrant such relief. There is no record of such. relief ever aving been granted. To the contrary,as appears below,the Applicant has considered the Premises, in official filings with this Board and the Building Inspector, to be a single family property. I. Whether Discontinuance Of A Lawful,Pre-existing Non-Conforming Structure Or Use Any Longer Requires An Intention To Abandon While not specifically requested by the Board,a number of questions arose during the hearing concerning the issue of abandonment and discontinuance of a lawful,pre-existing non-conforming use or structure. For that reason I submit the following, which is largely a recapitualtion of an opinion rendered to the Building Commissioner in July of 2008,supplemented by more recent case law. The Yarmouth By-law provides, in Section 104.3.1, "A. Abandonment. A non-conforming use which has been abandoned or discontinued for a period of two(2)years or more shall not be re-established, and any future use shall conform with the By-Law."(emphasis added) 7 I have assumed for purposes of this discussion only, that the Premises became non- conforming in 1971 when the minimum lot size for duplex use was increased under the By-Law. I also assume that the revision to the By-Law(and any subsequent revisions)were lawfully adopted. There is case law, notably Derby Refining Company v Chelsea, 407 Mass. 703 (1990) and Cape Resort Hotels, Inc. v Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982)which have arguably presented judicial precedent requiring some affirmative declaration or event confirming intention, rather than mere passive non-user,to terminate a lawful, pre-existing,non- conforming use. In Derby, the Court noted that: "To constitute an abandonment, the discontinuance of a non-conforming use must result from 'the concurrence of two factors, (1) the intent to abandon and(2) voluntary conduct whether affirmative or negative, which carries the implication of abandonment'. [Case cited]. Derby, at 708. However,a reasonably succinct,and I believe accurate review of prior law,a similar By-Law provision and a statement elucidating the evolution of what is the current consensus was initially articulated in the Supreme Judicial Court's Opinion in the matter of Ka-Hur Enterprises, Inc. v Zoning Board of Appeals of Provincetown, 424 Mass. 404 (1997) ("Ka-Hur- SJC"). In the Ka-Hur- SJC case, the Supreme Judicial Court reviewed some of its own and the Appeals Court's earlier decisions on the matter of abandonment or discontinuance and cited favorably the Appeals Court's earlier opinion in Ka-Hur Enterprises,Inc.v Zoning Board of Appeals of Provincetown,40 Mass. Appeal Court 71, (1996) ("Ka-Hur-App")which recapped matters as , follows: "Prior to the passage of the Zoning Act in 1975, the word `discontinued' in Zoning Ordinances and By-Laws was interpreted to be the legal equivalent of`abandoned'. [Case cited]. In Bartlett v Board of Appeals of Lakeville,23 Mass. Appeal. Court. 664, 669 [505 N.E.2°d 193] (1987),however,we rejected the notion that the phrase 'not used for a period of two (2) years or more' in §6 was the legal equivalent of abandonment requiring a voluntary and intentional relinquishment of the use. In that case, we concluded that a municipality now has two choices for terminating non-conforming uses, one being abandonment and the other a simple cessation of a non-conforming use for a period of at least two years". (Emphasis added). Ka-Hur-App, 73. In adding its own imprimatur,the Supreme Judicial Court concluded: "Thus, our statement in Derby Refining should not be read to require an abandonment in order to extinguish a non-conforming use,but rather as a reaffirmation that abandonment is simply one of the two ways in which a non-conforming use can be extinguished." Ka-Hur -SJC,407. 8 Since Ka-Hur-SJC,the Appeals Court has taken an additional opportunity to reiterate,clarify and emphasize the current state of the law in Town of Orange v. Shay,68 Mass.App. Ct. 358, 862 N.E.2nd 393(2007). At 68 Mass.App.Ct. 358,362 the Court begins an extensive discussion of the evolution of the law and of a municipalities increased discretion in the matter of non-conforming uses following the re-codification of the Zoning Enabling Act in 1975. The Court noted in particular,that the Legislature"...provided two separate avenues by which a prior nonconforming use can be extinguished:(a)abandonment;and(b)a period of nonuse of two or more years. The two concepts were thius no longer interchangeable." Orange, at 363. Furthermore, and more specifically, "While abandonment can happen `momentarily, without the lapse of any stated period of time,' the phrase 'not used' as the Legislature employed it, contemplates ` a simple cessation of non-conforming use for a period of at least two years.[Cases cited]. Orange, at 363-364. (Emphasis added) Thus,while there may have been a period of time during which the Derby and Cape Resort cases successfully fostered a belief that some affirmative intention to abandon (or some demonstration of intention not to abandon)was necessary in order to forfeit rights grandfathered as lawful,pre-existing, non-conforming uses, that theory is no longer viable under Massachusetts statutory and decisional law. The "judicial gloss"applied by both the Supreme Judicial Court and the Appeals Court to • the language of General Laws,Chapter 40A,Section 6,and the by-laws it has fostered regarding the authority to regulate non-conforming uses"abandoned or discontinued"for a period of two(2)years or more, leaves no room for argument that affirmative intention to abandon must be established. Mere non-user(absent some extraordinary circumstance which might compel a court to apply its equitable remedies)is sufficient. If,under the current By-Law,the owner does not affirmatively exercise the non-conforming use for a period of two (2) years, the right to do so lawfully, is extinguished and lost. II. Whether the Commissioner possesses the authority, pursuant to Section 7 of Chapter 40A,and following the issuance of a building permit by an individual duly authorized to issue such permits,to impose further validation requirements or even to rescind or revoke the permit and/or issue a cease and desist order to preclude further use or to dissemble that which has been constructed pursuant to the permit. Assuming for the sake of discussion that the Letter does constitute the"order"or"decision" which the Applicant seeks to appeal under Section 8,the second threshold question for the Board is whether or not the Letter constitutes an"order"or"decision"cognizable under section 8 of chapter 40A. 9 The Applicant contends that the Applicant inspected the Premises prior to purchasing it in 2001 and determined from its appearances that it was a duplex,two family structure. However,the issue presently before the Board is not whether the Building Commissioner should have applied some equitable principle to ameliorate a self imposed hardship, i.e. the good faith purchase of an unlawful two family dwelling. The issue is,whether or not the Commissioner,when presented with un-rebutted allegations describing an unlawful condition was authorized and empowered to require the Applicant to substantiate the basis upon which the Applicant, in his application asserted he owned a lawful,pre-existing, non-conforming duplex residential property. Whether or not a property constitutes a lawful,pre-existing,non-conforming structure or use thereby entitling it to certain grandfather rights is moored in the historical facts with respect to the physical improvements and use of the premises in the context of the applicable Zoning Statute and By-Laws/Ordinance from time to time. The burden of establishing that a property is the beneficiary of grandfather rights attributable to non-conformity in either use or structure is upon the property owner. Moreis v Board of Appeals of Oak Bluffs, et als. 62 Mass. Appeals Court 53, 57 814N.E. 2nd 1132. 1136 (2004); Chatham v Kendrick, 17 Mass. Appeals Court 928. 929 456 N.E. 2nd 1151,1152 (1983). The Town of Yarmouth Zoning By-Law(Section 101.1)and the General Laws(Chapter 40A, Section 7)designate the Building Inspector as the Zoning Enforcement Officer. As such the Zoning Enforcement Officer is required to evaluate applications for Building Permits and analyze the local By-Law and Statute to see if the requested activity is permissible thereunder. If so,a Building Permit should issue. If not,the Building Permit application should be rejected and the Applicant is left to alter his intentions to conform to the By-Law and Statute or file an Appeal from the adverse Decision. Such an Appeal is directed to the Zoning Board of Appeals. The pertinent provisions of Section 7 are as follows: "If real property has been improved and used in accordance with the terms of the original Building Permit issued by a person duly authorized to issue such Permits no action,criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said Permit or the removal,alteration or relocation of any structure erected in reliance upon said Permit by reason of any alleged violation of the provisions of this Chapter, or of any ordinance or By-Law adopted thereunder, shall be maintained,unless such action,suit or proceeding is commenced and notice thereof recorded in the Registry of Deeds for each county or District in which the land lies within six(6)years next after the commencement of the alleged violation of law; ...". If the Zoning Enforcement Officer, in his permitting role ens in issuing a Permit when the facts militate against such action, neither he nor the municipality are thereby barred from commencing action to enforce the By-Law if such action is commenced within the Statute of Limitations described in General Laws Chapter 40A, Section 7. The Courts have consistently held that "...the governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance." Ferrante v Board ofAppeals ofNorthampton,345 Mass. 10 158, 163, 186 N.E. 2nd 471 (1962), cited in Cumberland Farms, Inc. v Planning Board of Bourne, 67 Mass. Appeal. Court. 67. 851 N.E. 2"d 1108, 1110 (2006) and Whalen v Ellen M. Gifford Sheltering Home Corp.. 344 Mass. 281, 286. 182 N.E. 2""503. 507(1962). Furthermore, while apparently not yet the subject of the Commissioner's action, the Commissioner's power to revoke apermit is implicit in the rule consistently articulated by the Courts that the issuance of a permit does not bar enforcement of the By-Law. See Whalen v Ellen M. Gifford Sheltering Home Corp., Id. Section 7 also contains a provision establishing a similar 10 year Statute of Limitations but that is applicable with respect to situations in which a structure or its use was commenced without the benefit of a Building Permit issued by a person duly authorized to do so. The Applicant has labored strenuously in the course of the public Hearing to persuade the Board that because an abutting neighbor did not timely take an Appeal from the issuance of a Building Permit to the Applicant, the Building Commissioner is now somehow barred from discharging his duties pursuant to Section 7,as described above. The Applicant seeks to embellish this position by describing the neighbors dogged efforts to develop the factual history of the Premises and bring such information to the attention of the Building Commissioner. Even if any of this were true,it does not preclude the Commissioner from acting to correct an error discovered as a result of the neighbors research. "Massachusetts Case Law establishes that laches or estoppel is not a defense to an action to enforce Municipalities By-Laws or Zoning Ordinances" Cape Resort Hotels, Inc. v Alcoholic Beverages Board of Falmouth, 385 Mass. 205 223, 431 N.E. 2"d 213. 224 (1982) and cases cited. Furthermore,such is the case notwithstanding a substantial financial investment in good faith reliance upon prior administrative action. "The right of the public to have the Zoning By-Law properly enforced cannot be forfeited by the action of a [municipalities] officers." Building Inspector of Lancaster v Sanderson, 372 Mass. 157, 162, 360 N.E. 2"4 1051 (1977). In the Lancaster case, an individual expended considerable money in the acquisition and development of an airfield for which he had obtained a variance and certain related State approvals. One of the defenses to enforcement of the Zoning By-Law raised by the airfield owner was that the municipality was barred,that is estopped by certain actions and conduct of its own officials from then enforcing the By-Law to the detriment of the property owner. The Supreme Judicial Court cited with favor its earlier decision in Building Comm'r of Medford v C. &H. Co., 319 Mass. 273, 283, 65 N.E. 2"d 537, 543 (1946)which observed"the bill is brought to enforce the Zoning Ordinance for the public welfare...and the Building Inspector who is charged with the enforcement of this Ordinance is not estopped by the alleged action of the City or its officials,nor is the City itself." To adopt the Applicant's view and construction of the statutory scheme would render virtually meaningless the authority, indeed the directive, implicit in Section 7 which only bars enforcement action following the issuance of a permit but not until six years have elapsed since the 11 date of such issuance. While the Statute of Limitations with respect to the aggrieved neighbor is a relatively short 30 days, the six year period of Limitations granted to the municipality evidences a clear intent(and recognition by the legislature)that a municipal error should not precipitously bind the community to suffer the consequences of such an error. Case law fairly abounds in support of the proposition that a Building Inspector is not barred from seeking an enforcement action, even though a Building Permit was issued by a person duly authorized to do so,in this case the Building Commissioner. The Applicant would have the Board believe that somehow the Statute bears a gloss which limits its Application to instances of bad faith, fraud or similar malfeasance by the applicant. That clearly is not the case and to the contrary,the Courts of the Commonwealth have upheld the Zoning Enforcement Officer's authority in the face of good faith and the undertaking and expenditure of considerable funds in reliance upon permits that were issued, only to have them removed in the face of an enforcement action. See Building Inspector of Lancaster v George E. Sanderson, 372 Mass. 157, 360 N.E. 2nd 1051 (1977). III. Whether or not the Applicant should be estopped from bringing an Appeal based upon his Application. The Applicant, at the initial stage of this Hearing represented to the Board that he is well versed and experienced in zoning matters,to the extent that he traditionally represents himself and proceeds without counsel.I believe he did suggest that in this case he employed counsel because of concerns that if the matter was decided adversely to him it would precipitate a judicial appeal. As noted above,the Applicant represents that when he viewed the Premises prior to purchase, the improvements constituted a duplex and he relied upon that appearance when he decided to buy the. However, such superficial reliance on appearances is irrelevant to the determination made by the Building Commissioner in the Letter advising the Applicant that no viable grandfather rights attached to the Premises. Nevertheless,and particularly in view of his professed knowledge,the Board should deem it noteworthy that in his present application to the Board, the Applicant characterizes the use classification as: "...existing: single family section 202.5#Al" and the "use classification: proposed: two-Family section 202.5A2". (emphasis added). In Section 1 of the Application the Applicant does assert that a non-conforming two-family is still valid. While The Applicant now seems to argue that the premises are entitled to treatment as a continuing, lawful,pre-existing,non-conforming two family use and structure,i.e. a"duplex",his own representations in the instant petition belie that position. But was that simply another typographical error? The single family status asserted by the Applicant in the instant Petition is not an isolated instance but is consistent with his characterization in earlier applications that he has filed with this Board. 12 A review of Petition No. 3908, dated July 20, 2004 and filed by the Applicant sought a Special Permit for the Premises,to be allowed to construct an addition to an"existing single family home". This 2004 Petition apparently dealt with a modest expansion of the dwelling and was granted when the Board found it would not be more detrimental to the neighborhood"...them(sic) the existing single family home."(emphasis added). The Applicant's testimony at the most recent Hearing confirms that he proceeded,with the blessing of the Special Permit issued in Petition No. 3908, to effect a modest addition to the "...existing single family home". In view of the Applicant's own representations in official documents filed with the Zoning Board of Appeals the Applicant should be estopped and not now be permitted to bring an Appeal based upon allegedly pre-existing non-conforming two family status. IV. Whether the Application Brings the Letter, or Any Appealable Order or Decision Before This Board As An Appeal Under Section 8; General Laws Chapter 40A, Section 8 permits an appeal to this Board by, among others, "...any person...aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder." The Application form affords pre-printed sections to indicate requests for a Variance, a Special Permit or reversal of a building inspectors decision.The Application requests only reversal of a"decision" of the Building Inspector and not either form of zoning relief. The Letter, after reviewing some of the history of the process, including counsel opinions received and relied upon by the Commissioner,concludes with an"order"that the Applicant either "...provide sufficient documentation demonstrating that there was no interruption/lapse [in duplex use]beyond two(2)years..."or,if unable to do so,"...file a variance petition with the Zoning Board of Appeals to legitimatize/re-establish the two family use." Arguably the only two matters that conceivably constitute "orders" are an alternative invitation to either produce evidence or file for a variance.Ergo,the question before the Board is not whether the Commissioner has the authority to revoke the existing occupancy certificate, or issue a cease and desist order to discontinue an unlawful duplex use, or to in general commence an enforcement action after issuing a Building Permit. The question(s) is(or are), whether the Board has jurisdiction to order the Commissioner not to request additional information and not, in the alternative to order the Applicant to file for a variance. The Application form per se,does not refer to the Letter,although a copy of the July 16,2008 document is attached to the Application.Instead the form refers to a decision purportedly made on "7-14-09". The difference in dates between the Letter and the reference set forth in the Application 13 may represent a simple typographical error by the Applicant, who intended to "appeal" from the Commissioner's Letter ofJuly 16,2009 but if there is a written"decision"which is"dated 7-14-09" that the Applicant seeks to have overturned, I would like to reserve the Commissioner's right to address that document when and if it appears in the record of this hearing. Alternatively,the Applicant may be referring to some un-cited verbal communication with the Commissioner on "7-14-09" wherein he (the Applicant) now alleges that he was ordered, in violation of the By-law or statute to take some action which he feels is unwarranted and is thus appealing from that"order".If there is a verbal"Decision"which was purportedly made on"7-14- 09" that the Applicant is seeking to have overturned, I would like to reserve the Building Commissioner's right to address that"Decision"when and if it appears in the record of this hearing. The record at present is unclear, especially in view of the contents of the Letter, as to just what decision or order is purportedly being appealed.However,there appears to be nothing before the Board constituting a cease and desist order,or an order revoking a building permit or occupancy certificate,or even a cessation of a particular use. It may be that in view of the Applicants apparent failure to produce either the requested information to validate the two family use,or an application for zoning relief the Commissioner will now feel compelled to commence an enforcement action to compel the Applicant to bring the • Premises into compliance, that event has not yet occurred. Such an even would natirally be an appealable order or decision. Since the Letter itself does not appear to be a"decision"as that term is employed in c.40A, Section 8,(See Below, Section IV) any assumption that the Application, stating on its face that the Applicant seeks to overturn a cognizable decision of the Commissioner "dated 7-14-09", was actually intended to address a decision dated 7-16-09 would be speculative.Furthermore,there is no evidence of any order or decision made on July 14,2009. The Board must first determine whether, owing to misidentification or otherwise, the Applicant and Application brings the Letter or some other yet to be identified decision or order into play. Unless and until the Board is able to determine what decision or order has been placed before it,the Board should decline to take any action because it will have no jurisdiction to act.The Appeals Court has held that"...an appeal to the zoning board pursuant to Section 8 has, as a jurisdictional prerequisite,action by an administrative officer."Cumberland Farms,Inc v. Planning Board of Bourne, 67 Mass. App. 67, 69, 851 N.E.2nd 1108, 1110 (2006). That requires a formal action by the Commissioner in order to enable the Board to determine whether the substance of the decision by the Commissioner was in violation of the By-law or statute. Such is the reasoning in support of a written decision in response to a request for permit or enforcement. So should it be in the instance of a unilateral inquiry by the Commissioner for information and facts to determine whether an alleged illegality exists. 14 The Letter is not a Decision from which an Appeal may be taken to the Board of Appeals. If the Commissioner had issued an order seeking to revoke existing permit or for the Applicant to cease and desist use of the Premises, then such an appeal might lie. Absent that, there being no lawful appeal before the Board,the matter should be dismissed. Kolodny, et at v Board of-Appeals of Brookline, 346 Mass. 285, 287- 288. 191 N.E. 2nd 689. 691 (1963). There simply is nothing about the Application which brings the type of decision or order contemplated by Section 8 before the Board. For all of the reasons cited above,the Application should be dismissed,and if not dismissed then denied. ' incerely,i/ / J. Do _las M shy 4 JDM/t1h Enclosures K:\Yarmouth Master List\Marasco Matten\Building Dept-Marasco lssue\ZBA Appeal\Memo of Law to ZBA 1-21-01 Temp.wpd 15 SlVaddV do 42iVo9 Hino WHVA otol 9 g Nt/r ❑ 3 /113331 • v 2 - ru =: ap'.MZo at.J :. : y � 5r � � �. W0Q � . to h V '`h; O t t p � N ``k• • J }4n,' o ch01 u° ct 4 .�, .. �h ti° ops • h ti • •• t 'n N Ot \\�.�- � / w O. :�. : Q. a,0s 0 ttlq y ,r e1.a\ / • pp9 jiffy,eQ i N p �{ IE FIT" C dr • Q • i } 0 s: p t Db. oti per. 41fd s/ . o ti . b C� Y 06-18-2006 15:21 Fron- 1-168 P.008/014 F-531 : . `•- . • 1-0 Banknawth Wealth Management Group • TDBaekaortb,N.A. • . 495 Statim Avenue P.O.Box 1180 South Yarmouth,MA 02664 Toll Pres 800.6734300 • TD ltuka uthWcaltbi tasgemctoom November 16,2007 . Richard W. Shea,M.D. 4019 Eagle Cove West Dr. Palm Harbor,FL 34585 • Re:Edward L.Coughlin Trust tz/wil Dear Dr.Shea, • I am responding to your letter ofNovember 1't concerning the property located at 143 River St,South Yarmouth. • You have asked me to share with yon the basis for myFebnray,2006letter to Tim Brandolini,Town of Yarmouth Building Commissioner rega:•ding the apartment at that location Dozing my involvement with this tr4st,as ifs administrator,from app rohimately 1989 to its termination,I had the opportunity to engage in many coal creations with Mr. Coughlin's last two surviving siblings,his sisters,Dorothy Olson and Margaret Refuse. These conversations usually took place during the summer months when they occupied the River Street property.Gradually,I was given a history the Coughlin family,their brother,Edward's ownership of the 143 River Street propertY and their involvement subsequent to his death.I was told that the apartment was built by Edward far the twofold purposes of 1.possibly providing rental income,and,2.prov ding aeeommodations for • friends and relatives who visited,particularly during the sum mer months.The apartment had separate water and utilities. After Edward died(m 1972?),the property became an asset of his trust to be held and maintained for the benefit of his siblings.They continued to.thaw the use of the property including the apartment.During the 90's,whenever I would.suggest shutting down the utilities to the apartment,Mrs.Olson and Refuse would adan to utlyrefuse despite the fact that it had not been occupied for some years.They insistedtl ist it should be maintained with the hope of being used once again.It was not until 1991,whentheyboth were in such poor health that their visits to the Cape stopped,that I decided to save trust income and shut down Utilities to the apartment.Shortly thereafter,vihen it*ae clear the sisters would no longer be able to use the property,the trustee decided to sell. • • • • • 16 •• • 06-18-2004 15:24 From- T-169 P.009/014 F-531 • Regarding my letters to which you refer,I did state in my 9/15/1997 letter,to the Town of Yarmouth Water Department,that tie,the trustees,did not anticipate using the apartment in the future.That statement should be interpreted to mean the period of time the trust owned the property.No inference should have been made regarding the use of that apartment by the subsequent owner. Last,one would not and evidenceof rental income searching the Coughlin 17staterecords at the Probate Court.Rental income,if any,would have been reported on the trust's annual income tax returns. • I trust this answers your questions. Sincerely, . P Richard Bussierc,CTFA Vice President WeatthAdvisor • • • • Westlaw 505 N.E.2d 193 Page 1 23 Mass.App.Ct.664,505 N.E.2d 193 (Cite as:23 Mass.App.Ct.664,505 N.E.2d 193) C Appeals Court of Massachusetts, Plymouth. Basil W.BARTLETT v. BOARD OF APPEALS OF LAKEVILLE et al.r" FN1.The building inspector of the town. Argued Feb. 12, 1987. Decided March 18, 1987. Building owner appealed a decision of town board of appeals which refused to order town's building inspector to issue building permit for use in connection with renovation of three dwelling units in building which previously was a nonconforming use.The Superior Court,Plymouth County,William H.Carey,J.,sustained decision of Court of Appeals. The owner appealed.The Appeals Court,Grant,J.,held that owner was not entitled to permit. Affirmed. West Headnotes [1]Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 4141337 k.Cessation of Use.Most Cited Cases Statute providing that zoning ordinance or bylaw may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more authorizes cities and towns to extinguish otherwise protected nonconforming uses if particular premises are not in fact used for protected purposes for a minimum of two years. M.G.L.A.c.40A,§6. • 121 Zoning and Planning 414 X381 414 Zoning and Planning 414V1II Permits,Certificates and Approvals 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 J 414VIII(A)In General 414k378 Grounds for Grant or Denial 414k381 k.Prior Nonconforming Use.Most Cited Cases • Under town's zoning bylaw which provided for continuation of any nonconforming use provided use had not been discontinued for a period of two years or longer,building owner was not entitled to building permit to renovate dwelling units in building,which had been a nonconforming use,where two of three dwelling units had not been used for more than two years. 131 Zoning and Planning 414 C=337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Zoning and Planning 414 X381 414 Zoning and Planning 414VIII Permits,Certificates and Approvals 414VIII(A)In General 414k378 Grounds for Grant or Denial 414k381 k.Prior Nonconforming Use.Most Cited Cases Failure to use two of dwelling units in nonconforming use building for a period ofmore than ten years prior to application of building permit to renovate dwelling units constituted an abandonment and justified denial of grant of building permit. **194*664 Daniel F.Murray,Middleboro,for plaintiff. Thomas A.Maddigan,Town Counsel,Middleboro,for defendants. Before GREANEY,C.J.,and GRANT and PERRETTA,JJ. *665 GRANT,Justice. The plaintiff has appealed from a judgment of the Superior Court which,in effect,sustained a 1984 decision of the board of appeals of Lakeville by which the board refused to order the town's building inspector to issue a building permit to the plaintiff for use in connection with the renovation of three dwelling units in abuilding located in the residence zoning district of the town.The questions for decision are the proper construction(1)of the third paragraph of G.L.c.40A,§ 6,as appearing in St.1975,c. 808, §3,which provides that"[a] zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more,"and(2)of§V(a)of the Lakeville zoning by-law,as amended in 1978,which provides in pertinent part for the continuation of any nonconforming use of a building or land"provided such use has not been discontinued for a period of two years or longer." The case was submitted to the Superior Court on a statement of agreed facts which may be summarized as follows.In 1959,at the time of the adoption of the first zoning by-law in Lakeville,the building in question contained three dwelling units,all of which were occupied.The by-law did not permit three-family dwelling units in the residence zoning district in which the property was placed.The property was protected by the nonconforming use provisions of the 1959 by-law, 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 . which were the same as the present provisions already quoted except that they concluded with words such as"one year or longer"rather than the present"two years or longer."In 1962 the property was acquired by a couple by the name of - Ryan,who occupied one of the units and let the other two out to tenants until Mr.Ryan died,some time in 1973.Mrs. Ryan continued to live in the unit formerly occupied by herself and Mr.Ryan until the time of her death in 1983.The unit in which she lived has been unoccupied since her death.The other two units have been unoccupied"from and after approximately January 1,1974."The statement of agreed facts also contains the following:"Mrs.Ryan's health steadily declined for several years until her death Her ability to maintain and manage the house was substantially impaired because of declining health. Because*666 of her declining health Mrs. Ryan was unable to rent the premises or to physically alter or eliminate the apartments"(emphasis supplied). In 1984,the plaintiff,as the present owner of the property,applied to the building inspector of the town for a building permit for use in connection with the renovation of all three dwelling units.The zoning by-law still forbids three-family dwelling units unless they are protected by the nonconforming use provisions of the by-law,and the building inspector denied the application.The plaintiff appealed to the board of appeals under G.L.c.40A,§ 8,as appearing in St.1975, c.808,§3.The board attributed to the words"discontinued for a period of two years or longer"in the amended**195 by-law the same meaning as the words"not used for a period of two years or more"in the present G.L.c.40A,§6,and sustained the action of the building inspectorru'That action prompted the plaintiffs appeal to the Superior Court under GL.c.40A,§ 17,as amended through St.1982,c.533,§ 1.As already noted,a judge of that court sustained the board's decision. FN2.A copy of the board's decision was attached to the complaint,as required by GL.c.40A,§ 17,and that copy has been reproduced in the record appendix.Copies of other documents similarly attached have not been reproduced.The parties stipulated in writing that"[n]o exhibits attached to the complaint shall be evidence in the case."We think it clear from counsel's response to the judge's opening inquiry as to the meaning of the stipulation that there was no intention of blinding the court to the contents of the very decision which was to be scrutinized under§ 17. 1.A careful review of the legislative history of the provisions of the third paragraph of the present GL.c.40A,§6,leads to the conclusion that the board's construction of the amended by-law is correct.The first grant of legislative authority to cities and towns outside Boston to adopt zoning ordinances and by-laws is found in St. 1920, c. 601 ("An Act to authorize cities and towns to limit buildings according to their use or construction to specified districts"), §7,which provided that"[t]his act shall not apply to...the existing use of any building,but it shall apply to any alteration of a building to provide for its use for a purpose,or in a manner,substantially*667 different from the use to which it was put before the alteration."'TM'That language found its way into GL.(1921)c.40,§29,without any change of substance. With the slight changes effected by St.1925,c. 116, § 3,the language was carried to GL. (Ter.Ed.)c.40, §29. The zoning enabling legislation was extensively rewritten by St.1933,c.269("An Act revising the municipal zoning laws"), § 1.The subject of nonconforming uses resurfaced in a new,GL.c.40,§26,1'N4 the second sentence of which provided that"[s]uch an ordinance or by-law may regulate non-use of non-conforming buildings and structures so as not to unduly prolong the life of non-conforming uses."'In that language is found the first legislative grant of authority to cities and towns outside Boston to extinguish nonconforming uses.The quoted language persisted until the effective date of the present GL.c.40A,§6.n'16 See St. 1952,c.438;GL.c.40A,§5,as appearing in St.1954,c.368,§2;St.1962,c.340; St.1969,c.572. FN3.See Inspector of Buildings of Burlington v.Murphy, 320 Mass.207,209,68 N.E.2d 918(1946). • FN4.See LaMontagne v.Kenney, 288 Mass.363,368, 193 N.E.9(1934). FNS.See Planning Bd of Readingv Board ofAppeals ofReading,333 Mass.657,658-659, 132 N.E.2d 386 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 (1956). FN6. Unless sooner accepted by a particular city or town,the provisions of G.L. c. 40A, as appearing in St.1975,c.808,§3,and as amended(in respects not here material)by certain of the provisions of St.1977,c. 829,took effect in every city and town except Boston(as to which see Emerson College v.Boston, 393 Mass. 303,306-309,471 N.E.2d 336[1984])on July I, 1978.See Casasanta v.Zoning Bd of Appeals of Milford 377 Mass.67,72-73,384 N.E.2d 1218(1979);Shalbey v.Board ofAppeal ofNorwood 6 Mass.App.Ct.521, 526-527,378 N.E.2d 1001 (1978). It became the fashion for cities and towns,acting under the foregoing authorization,to adopt ordinances and by-laws directed to the extinguishment of nonconforming uses which spoke in terms of"discontinuing"such a use for a stated period.In the first case involving such an ordinance to reach the Supreme Judicial Court it was concluded,after a review of authorities in other jurisdictions,that"discontinued"should be considered the equivalent of"abandoned."Pioneer Insulation&Modernizing Corp.v.Lynn, 331 Mass.560,565, 120 N.E.2d 913(1954).*668 The court said:"Hence it uniformly has been stated-and rightly we think-that the discontinuance of a nonconforming use results from the concurrence of two factors,(1)the intent to abandon and(2)voluntary conduct,whether affirmative or negative,which carries the implication of abandonment.Thus nonoccupancy of the premises and suspension or cessation of business **196 due to causes over which the owner has no control do not of themselves constitute a discontinuance;and lapse of time is not the controlling factor,although it is evidential,especially in connection with facts showing an intent to discontinue the use."Id The equivalence of"discontinued"and"abandoned"has been perpetuated.See,e.g.,Dobbs v.Board of Appeals of Northampton, 339 Mass.684,685,686, 162 N.E.2d 32(1959);Medford v Marinucci Bros. & Co.,344 Mass.50,60&n. 1, 181 N.E.2d 584(1962);Cape Resort Hotels,Inc.v.Alcoholic LicensingBd of Falmouth, 385 Mass.205,220-221,431 N.E.2d 213(1982),Id,388 Mass.1013,446 N.E.2d 1070(1983).r'See also Cities Sen. Oil Co.v.Board of Appeals of Bedford, 338 Mass.719,724, 157 N.E.2d 225(1959). FN7.We acknowledge that the Cape Resort Hotels case was decided well after the effective date ofthe present G.L. c. 40A, § 6. A perusal of the original papers in the appeal in that case (see Flynn v. Brassard 1 Mass.App.Ct.678,681,306 N.E.2d 446[1974],Id,4 Mass.App.Ct.795,344 N.E.2d 220[1976])discloses that the court was not asked to consider the question discussed in this part of our opinion. We think this case presents a proper occasion to consider whether the language ofthe third paragraph ofthe present G.L. c.40A, §6,countenances the further perpetuation of the equivalence of"discontinued"and"abandoned" in zoning ordinances and by-laws.'It will be remembered that§6 now provides that"[a]zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more."By this language the Legislature has, for the first time,provided express criteria which can be employed by cities and towns outside Boston*669 that may be desirous of extinguishing nonconforming uses.There are two,and only two,criteria; they are distinctly stated in the disjunctive;but a city or town may employ either or both.The first criterion is the familiar "abandonment"on which the cases have concentrated ever since the decision in the Pioneer Home Insulation case in 1954.As the decided cases show,an abandonment is something that can happen momentarily,without the lapse of any stated period of time.See, e.g.,Dawson v. Board of Appeals of Bourne, 18 Mass.App.Ct.962,963,469 N.E.2d 509 (1984),which is discussed in note 8 hereof. FN8.This question lurked in the record in Dawson v.Board of Appeals of Bourne, 18 Mass.App.Ct.962,469 N.E.2d 509(1984),but was not reached because the by-law was framed in the disjunctive and the evidence required a finding that the nonconforming use as a nursing home had been abandoned when the owners of the premises surrendered their license to operate the home. [1]The other criterion in the new§6 is"not used for a period of two years or more."That language,taken on its face, appears to contemplate a simple cessation of a nonconforming use for a period of at least two years.Ifthat is the meaning 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 properly attributable to the phrase,then the Legislature has authorized the use of an objective standard which is easily understood by the public and easily administered by building inspectors and boards of appeal.If,on the other hand,we are to read into the phrase a requirement of voluntary or intentional action on the part of the owner of nonconforming premises amounting to a traditional"abandonment,"such as has been done in the past with the word"discontinued,"r ' then the Legislature must be taken to have indulged in a tautology:the statute would have to be read as authorizing cities and towns to regulate nonconforming uses which have been"abandoned or abandoned for a period oftwoyears or more." We reject any such construction as unreasonable.We think the Legislature,by its choice of the second criterion in§6, 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. FN9.The usual lexical defmitions of"discontinue"do not embrace any concept of specific intent on the part of the person who discontinues something.See,e.g.,Webster's New International Dictionary(2d unabridged ed. 1949),which gives the following definitions:"To interrupt the continuance of;to intermit,as a practice or habit;to put an end to;to cause to cease;to cease using;to give up." **197 [2] *670 The proper construction of the present G.L. c.40A, § 6, assumes a very real significance once it is understood that a city or town cannot adopt a new or amended zoning ordinance or by-law which conflicts with pertinent enabling legislation of general application.Planning Bd of Reading v.Board of Appeals of Reading 333 Mass.657, 660, 132 N.E.2d 386(1956),and cases cited. In addition,the 1978 annual town meeting in Lakeville was under a legislative imperative to modify its zoning by-law in such fashion as to bring it into conformity with the provisions of the new G.L.c.40A not later than July 1,1978T"°See the second paragraph of St.1975,c.808,§7,inserted by St.1977, c.829,§4.In the circumstances,the town meeting must be taken to have done more than simply enlarge from one year to two the period of time necessary for the extinguishment of a nonconforming use.The town meeting had a choice of adopting either or both of the criteria set out in the new§6.We think the meeting,by not referring to the"abandonment" criterion,by leaving undisturbed the word"discontinued,"and by inserting immediately thereafter the words"for two years or longer,"opted for the simple,objective criterion"not used for two years or more." FNIO. It was agreed at argument that the 1978 amendment of§ V(a) of the Lakeville zoning by-law was adopted at the 1978 annual town meeting,which necessarily preceded the July 1,1978,effective date ofthe new G.L.c.40A(supra,note 6).See CSL.c.39,§9. We conclude that the board of appeals was correct in equating the language of the by-law with that of the cognate provision of the statute.As two of the three dwelling units in question had not been used for more than two years,a building permit was properly refused. [3] 2. The case was submitted to the Superior Court,was decided by that court, and was briefed in this court on the traditional question of abandonment.'The trial judge,in his memorandum of decision,was obviously disturbed by the fact that two of the dwelling units had not been used for more than*671 ten years prior to the application for a building permit."'He noted the portion of the statement of agreed facts which dealt with Mrs.Ryan's declining health and consequent inability to let the premises out following the death of her husband which has already been quoted(supra, at 194).That portion of the statement has to be read with some care.It recites that Mrs.Ryan's health"steadily declined for several years until her death" in 1983 (emphasis supplied). The statement does not disclose when the decline commenced,with the result that there could have been a considerable period of years following the agreed date of January 1, 1974,during which Mrs.Ryan could have let the other two dwelling units out if she had been disposed to do so. FN11.Counsel agreed at argument that they had discussed the possibility that this case might go off on the ground discussed in part one of our opinion. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 FN 12.In the Dobbs case,339 Mass.at 686,162 N.E.2d 32,the court calculated the four-year period of nonuse under consideration there to extend to the date of the hearing in the Superior Court. In this case, such a calculation would have yielded a period of nonuse of eleven years and more than eight months. In reality,the plaintiff,who had the burdens of proof and persuasion on the questions of intent and inability as they related to a possible abandonment(see Dion v.Board ofAppeals of Waltham,344 Mass.547,555-556,183 N.E.2d 479 [1962];Bridgewater v Chuckran, 351 Mass.20,24,217 N.E.2d 726[1966];Framingham Clinic Inc. v. Zoning Bd ofAppeals of Framingham,382 Mass.283,297,415 N.E.2d 840[1981]; Warren v.Zoning Bd ofAppeals of Amherst, 383 Mass.I,10,416 N.E.2d 1382[1981];Cape Resort Hotels,Inc.v.Alcoholic Licensing Bd of Falmouth,385 Mass. at 212,431 N.E.2d 213;Martin v.Board ofAppeals of Yarmouth, 20 Mass.App.Ct.972,972,482 N.E.2d 336[1985]: contrast Brotherhood ofAlpha Upsilon,Inc.v.Zoning Bd ofAppeals ofBridgewater, 15 Mass.App.Ct.••198 991,992, 448 N.E.2d 69 [1983] ), did not give the judge much to work with. In the circumstances, we cannot fault him for attaching primary importance to the period of more than ten years during which the disputed units had not been used and in concluding that there had been an abandonment of the nonconforming use so far as those units were concerned.What happened here is nothing more than what was first envisaged in the Pioneer Insulation case,331 Mass.at 565, 120 N.E.2d 913,and later adumbrated in the Dobbs case,339 Mass.at 686-687, 162 N.E.2d 32. •672 3.The plaintiff also argues that he cannot be deprived of a building permit because§V(a)of the Lakeville by-law, unlike some other nonconforming use by-laws which have been considered by the courts,does not expressly prohibit the reestablishment of such a use once it has been extinguished. See,e.g.,the Pioneer Insulation case,331 Mass. at 561-562,120 N.E.2d 913.The essential predicate ofthe argument is that§V(a)is the only portion ofthe by-law bearing on the extinguishment of nonconforming uses.The predicate is shaky.It is not at all uncommon to fmd provisions in other parts of zoning by-laws which control ones such as§V(a)by providing,often in the preface to a table of uses,that no property in the town shall be used except for a purpose expressly permitted by the by-law.Indeed,it appears from the statement of agreed facts in this case that"three family dwelling units were and are not allowed by the initial and[sic ]amended...Lakeville[z]oning[b]y-law."We have not been given any part ofthe by-law other than§V,and we cannot take judicial notice of what any other part may provide. Warren v. Zoning Bi ofAppeals of Amherst, 383 Mass.at 8, 416 N.E.2d 1382.Brotherhood ofAlpha Upsilon,Inc.v.Zoning Rd ofAppeals ofBridgewater, 15 Mass.App.Ct.at 991, 448 N.E.2d 69. The whole notion of reestablishing an extinguished nonconforming use is repugnant to the concept embodied in the proviso of§ V(a). If, as matter of fact, there is some other part of the by-law which supports the plaintiffs position,there has been a failure of proof on the point. Judgment affirmed END OF DOCUMENT 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 P Supreme Judicial Court of Massachusetts,Barnstable. • CAPE RESORT HOTELS,INC. v. ALCOHOLIC LICENSING BOARD OF FALMOUTH et al.[FNI] FN 1.The other defendant is the building inspector of Fahnouth. (and a companion case[FN2]). FN2.Falmouth Heights-Maravista Improvement Association&others vs.Robert Johnson&another.The other plaintiffs are twelve named individual residents of the town of Falmouth;the other defendant is Cape Resort Hotels,Inc. Argued Oct. 8, 1981. • Decided Feb.5, 1982. In first action hotel sought declaratory judgment establishing its right to serve liquor without food or with hors d'oeuvres only and to offer live entertainment in certain section of its main building and in second action,12 residents of town and association of residential property owners where hotel was located sought to enjoin present operation in building and two related buildings on ground that use of building was in violation ofrelevant sections of zoning bylaw and also sought order directing building inspector to enforce zoning bylaw.The Superior Court,Travers,J.,consolidated cases for trial and found certain uses were impermissible extension or changes of prior nonconforming use,and hotel and association appealed.The Supreme Judicial Court,Lynch,J.,held that: (1)current operation of hotel was no longer protected by zoning bylaw as valid continuation of 1926 nonconforming use;(2)building permits and variance granted to prior owners of hotel did protect show lounge currently occupying space of former frolic room;(3)permission to operate present ground floor facilities could not be implied from variance from parking lot granted to prior owners;(4)use of annex to house hotel guests was change in prior nonconforming use and would not be permitted by bylaws;and(6)injunctive relief granted was overly broad. Reversed and remanded. West Headnotes [11 Zoning and Planning 414 X328 414 Zoning and Planning 414 VI Nonconforming Uses 414k328 k.Particular Cases as Involving Change of Use.Most Cited Cases Where hotel was at one time a full-service resort hotel whose primary purpose was to provide lodging, meals and ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 entertainment for overnight guests and in recent years,management has presented hotel to public as largest entertainment complex on Cape Cod and hotel had been built as three clubs under one roof with aim of attracting public in large numbers,and where current use of hotel property had effect on neighborhood"different in kind"from effect of prior use, operation of hotel was a change in use so that current operation of hotel was no longer protected under zoning bylaw as valid continuation of 1926 nonconforming use.M.G.L.A.e.40A, §6. [2]Zoning and Planning 414 0=7327 414 Zoning and Planning 414VI Nonconforming Uses 414k327 k.Continuance or Change of Use in General.Most Cited Cases Where show lounge currently occupying space of prior frolic room was being used for same purpose as its predecessor, i.e.,afternoon"happy hours"and dancing,drinking,and entertainment in the evening,space was"used in accordance with the terms of the original building permit"and thus,was in accordance with permit granted previous owners and passage of over six years since use allowed by these permits barred action to limit current use of frolic room;however, fact that open portion on ground floor was enclosed pursuant to 1956 building permits and for purpose of enlarging inside floor area did not protect entire present use of hotel's ground floor. [3]Zoning and Planning 414€546 414 Zoning and Planning 4141X Variances or Exceptions 4141X(3)Proceedings and Determination 414k546 k.Effect of Determination.Most Cited Cases Permission to operate present ground floor facilities in hotel used primarily for entertainment could not be implied from variance for parking lot granted to prior owner of hotel in 1969 by town board of appeals.M.G.L.A.c.40A,§6. [4]Zoning and Planning 414 X336.1 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases (Formerly 414k336) Under town zoning bylaw to effect that when a nonconforming use has been discontinued for period of one year,it shall not be reestablished,the word"discontinued"is the legal equivalent of"abandoned." [5]Zoning and Planning 414 X336.1 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.I k.In General.Most Cited Cases (Formerly 414k336) 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 An abandonment of nonconforming use results from concurrence of intent to abandon and voluntary conduct which carries implication of abandonment. [6]Zoning and Planning 414 X336.1 414 Zoning and Planning 414VI Nonconforming Uses 4141(336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases (Formerly 414k336) Sale of property protected as nonconforming use does not by itself establish an abandonment of that use. [7]Zoning and Planning 414 x'336.1 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases (Formerly 4141(336) Where lodge had at all times been used for commercial housing of guests,there was no discontinuance of nonconforming use so that lodge would lose its protection as nonconforming use under town zoning bylaw, notwithstanding change within ownership. [8]Zoning and Planning 414 x338 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k338 k.Change of Use.Most Cited Cases Where annex to hotel had been used as dormitory for hotel employees and was now used as accommodations for paying guests of hotel,prior nonconforming use of annex was lost by abandonment and current use to house guests of hotel was in violation of town zoning bylaws. [9]Zoning and Planning 414 G'762 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(A)In General 414k762 k.Defenses to Enforcement.Most Cited Cases Even where it has been a substantial financial investment, laches or estoppel is not defense to action to enforce municipalities'bylaws or zoning ordinances. [10]Zoning and Planning 414 x'762 ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(A)In General 414k762 k.Defenses to Enforcement.Most Cited Cases Where neither dramatic changes in nonconforming use of hotel's ground floor space nor changes of annex were specifically approved by official charged with enforcing town zoning bylaws,laches and estoppel provided hotel with no defense to enforcement of zoning bylaws. [11]Zoning and Planning 414 X790 414 Zoning and Planning 414XI Enforcement of Regulations 41430(B)Injunction Against Violation 414k790 k.Trial,Judgment,and Relief.Most Cited Cases Injunction enjoining hotel"from using those portions of ground floor facilities known as the Disco Room•*•the Pub, and the Game Room for the purposes of selling or providing alcoholic beverages,providing live entertainment,providing recorded music and dancing,and providing coin operated machines such as pinball machines and billiard tables"as changes in prior nonconforming use was overly broad inasmuch as when hotel became nonconforming use,drinking, music,and dancing were offered to some extent in some of areas covered by injunction. **214*206 Michael D.Kelly,Watertown,for Cape Resort Hotels,Inc. Edward W.Kirk,Falmouth(Edward W.Farrell,Town Counsel,Falmouth,with him),for Falmouth Heights Maravista Improvement Ass'n and another. Before*205 HENNESSEY,C.J.,and WILKINS,LIACOS and LYNCH,JJ. LYNCH,Justice. This appeal involves the legality,as a nonconforming use under the zoning by-law of the town of Falmouth,ofthe current operation of a resort facility located in that town.The facility is owned by Cape Resort Hotels,Inc.(Cape Resort),and is known as the"Brothers Four."The appeal consists of two actions which were consolidated for trial.In the first action, Cape Resort seeks a declaratory judgment establishing its right to serve liquor without food or with hors d'oeuvres only and to offer live entertainment in a certain section of its main building.In the second action,twelve residents of Falmouth and an association of residential property owners from the Falmouth Heights area of Falmouth where the Brothers Four is located(hereinafter collectively known as"the association")seek to enjoin the present operation ofthe main building and two related buildings on the ground that the use of these buildings is in violation of relevant sections of the zoning by-law.The plaintiffs in the second action also seek an order directing the building inspector of Falmouth to enforce the zoning *207 by-law with respect to Cape Resort's facility. The building inspector included in his answer a cross-complaint against Cape Resort**215 by which he seeks to enjoin Cape Resort from operating the Brothers Four and its outbuildings in a manner which violates the zoning by-law.[FN3] FN3.It could be argued that the Superior Court lacked jurisdiction to hear the action brought by the Falmouth residents and neighborhood property owners. See McDonald's Corp. v. Seekonk, -- Mass.App. —, ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 Mass.App.Ct.Adv.Sh. (1981) 1508, 424 N.E.2d 1136; William C. Bearce Corp. v. Building Inspector of Brockton,--Mass.App.—,Mass.App.Ct.Adv.Sh.(1981)286,416 N.E.2d 509;Neuhaus v.Building Inspector of Marlborough,—Mass.App.—,Mass.App.Ct.Adv.Sh.(1981) 161,415 N.E.2d 235. It seems clear,however,that a landowner in doubt about the propriety of the use of his property under a zoning by-law may seek declaratory relief(as Cape Resort did in the first action)without making a demand. on the building inspector under G.L.c.40A,s 7.Furthermore,since the answer of the building inspector in the landowners'action and his cross-complaint in the second action sought a judicial determination of the rights of Cape Resort under its nonconforming use and requested that Cape Resort be enjoined from engaging in any act in violation of the Falmouth zoning by-law,all issues raised in the second action are properly before us and it is,therefore,unnecessary to reach the issue of the right of the neighbors to maintain their action.It should be noted that this issue of the neighbors'right to maintain an action in their own names is not argued before us and apparently was not pressed in the Superior Court. A judge of the Superior Court heard oral testimony,reviewed written evidence,and took a view of the hotel premises. He made extensive fmdings of fact on the past and present operation of the buildings owned by Cape Resort.He then held that(1)the current use ofthe ground floor facilities of the Brothers Four was an impermissible extension or change of a prior nonconforming use, (2)the use made of that portion of the ground floor known as the"frolic room"was nevertheless protected by the provisions of G.L.c.40A,s 7,(3)the use of a building called the"lodge"was a lawful prior nonconforming use,and(4)a building known as the"annex"could lawfully be used to house employees of the hotel but not to lodge hotel guests.The judge found both mandamus and injunctive relief to be appropriate.Both Cape Resort and the association have appealed.We*208 fmd no error in the judge's rulings but remand for reconsideration of the scope of the injunctive relief granted. We review the facts concerning the main building of Cape Resort's facility(hereinafter"the hotel")as found by the judge. Facts relative to the buildings known as the"lodge"and the"annex"will be outlined in our discussion of the legal issues raised by their use. The hotel was built before the turn of the century and was known,until relatively recently,as the"Terrace Gables."It is located in the Falmouth Heights section of Falmouth.Falmouth Heights was originally a neighborhood of mostly single-family summer homes with a smattering of summer hotels.While there are still many private homes,the area now includes a significant number of guest houses and rental properties,some of which have been rented in recent years to groups of unrelated persons.From 1926,when zoning was adopted in Falmouth,until the mid-1950's the Terrace Gables functioned as a traditional,full-service summer resort hotel for a mostly middle-aged and older clientele.Guests were met at the train or bus station by hotel personnel and stayed at the hotel for periods ranging from a week to the entire season.The ground-floor layout included a dining room,kitchen,lobby and reading area,sitting and television room, and porch.There were also a few guest rooms behind the lobby.The hotel offered three meals a day on an American or European plan. The dining room was also open to the public.A wide variety of food was cooked and served on the premises.Guests were required to"dress"for dinner.There were no separate bars or cocktail lounges,although drinks were available in the dining room[FN4]at tables and at a small bar on one side of the dining room.A piano player or trio occasionally provided music during the dinner hour.A range of entertainment was provided in the**216 evenings. These activities,including cards,bingo,and movies,were generally concluded by*209 10 P.M.After the dinner hour most ofthe people on the hotel property were hotel guests.The hotel occasionally sponsored dances and concerts which would run until I A.M.Cocktails were available at these functions and the public was welcome.The hotel served as"a center of social life on the Heights." FN4. There was no allegation that the hotel has not always had the proper liquor licenses (except during 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 prohibition when no licenses were issued). The 1950's and 1960's were a period of transition for the hotel.There was a change in management and more advertising to encourage nonguests to patronize the hotel for dining,dancing,cocktails,and entertainment.The effort to attract the public was also reflected in changes made in the physical layout.In the early 1950's,a small cocktail lounge was built from a part of the dining room.In 1954,the outside porch was enclosed to create additional interior space.The former reading area became a coffee shop in 1960 and lunch was no longer served in the dining room.The hotel moved to a modified American plan for food.A cocktail lounge called"club 46"was opened.It offered a"happy hour"and music and dancing on weekends until midnight. In 1962,the ground-floor guest rooms were removed,the coffee shop was converted into a cocktail lounge,club 46 was closed,and a new"frolic room"was created and later enlarged.The judge found that the frolic room became"the principal focus of entertainment for guests and the public." Iarge numbers of young people came to the frolic room for a late afternoon "happy hour" and for dancing and entertainment in the evening.Traffic and parking problems developed and there was a significant amount of noise at closing time.A variance was granted in 1969 for the creation of a parking lot.A fee was charged to all except guests of the hotel.In 1970,there was another change in management.The clientele attracted to the hotel became increasingly younger and control problems increased. The current management, Cape Resort,bought the hotel in 1971.With very few structural changes,Cape Resort has developed the hotel's entertainment offerings to such an extent that it describes the hotel in its advertising as"the largest *210 entertainment complex on Cape Cod"and"Three Clubs under One Roof."The"three clubs"are the"pub,"the "show lounge,"and the"disco."The pub(in what was once the reading area)has a bar,jukebox,games,and live music in the evenings.It can accommodate 89 people and is open until 1 A.M.The show lounge is the former frolic room.In 1979-1980,it was only open on weekends.It has two bars,a dance floor,and a stage and can hold 382 people.The show lounge features entertainment,musical groups,and dancing.The disco is what was once the dining room.It has a dance floor and three bars and features complex light displays and sound equipment controlled by a"disc jockey."Three hundred and sixty-four people can be accommodated for dancing and drinking.Under the name"club car"the disco is open in the morning for breakfast and in the evening for light food.The ground floor also contains a"game room"with electronic games, drinks, and mom for forty-eight people. hi addition to the regular schedule of entertainment, the management advertises a variety of special events including, for example, summer Halloween and New Year's Eve parties,"beat the clock"nights during which drinks become progressively more expensive,and audience participation shows such as a"gong show,""creative goldfish eating"and pie eating contests,and talent shows,for which the winners are awarded prizes.Tickets for these special events are distributed at closing time and on the beaches during the day. The judge made factual fmdings on parking facilities,number of employees,and the income generated by the hotel. These figures show that there are an estimated 104 to 175 parking spaces available for over 100 guests, 40 to 60 employees,and a potential holiday weekend crowd of over 800 people.As very little parking is allowed on neighborhood streets,there have been some problems with patrons parking on private land.Information on the distribution of hotel employees**217 suggests that the bulk of them are employed as waiters,waitresses,and bartenders.Only four or five are employed to prepare food.The income figures for the *211 years 1971-1977 show steadily increasing revenues overall but steadily decreasing revenues from room rentals.[FN5]In each year from 1971 to 1977 for which appropriate figures are available, charges for liquor and admission accounted for sixty to eighty percent of the overall revenues generated by the hotel. Prices for food, drinks, and admission have increased much faster than charges for rooms, although the judge took note of the fact that the rooms are old-fashioned,and low rates may be necessary to achieve an acceptable occupancy rate. FN5.As the judge pointed out,at the occupancy rate and room charges named by Cape Resort,the revenue 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 from room rentals should have been much higher than it actually was.This discrepancy led the judge to question whether the hotel aspect of the operation was being deliberately maintained despite its limited financial return or even whether the income figures had been rearranged to conceal how unprofitable certain aspects of the hotel operation had become. Finally,the judge found that complaints generated by the operation of the Brothers Four related primarily to noise at closing time, especially on weekends, and parking problems. Although management has made efforts to control the crowds,closing time is frequently marked by loud talk,laughing,some fights,and considerable traffic noise.Thus,even though control problems are less severe than they were in the 1960's,neighbors are still sometimes awakened or kept awake until 2 or 3 A.M.These problems are affected by the fact that the neighborhood contains two establishments which attract a clientele similar to,although smaller than,that of the Brothers Four.Guest houses in the area also add to the general outdoor activity. [1] 1. Ground-floor hotel entertainment facilities. All parties, and the judge, agree that in 1926 the hotel was a nonconforming use underthe original Falmouth zoning by-law.[FN6]Therefore,as a prior nonconforming use,the hotel is*212 not in violation of the by-law.[FN7]The primary question presented by these appeals is whether there has been such a"change or substantial extension"of that use that the current operation of the hotel is no longer protected under G.L.c.40A,s 6,and s 18 of the Falmouth zoning by-law,as a valid continuation of the 1926 nonconforming use.We agree with the judge that there has been such a change. FN6.Cape Resort and the association stipulated that,at all times between 1926 and the present,the hotel has been located in an area zoned residential.The record does not reveal the exact manner in which the hotel failed to conform to the 1926 by-law. FN7. Section 18 of the Falmouth zoning by-law reads as follows:"Non-Conforming Uses.(a)My building, part of a building or premises which,at the time of the adoption of this by-law,is being put to a non-conforming use may continue to be used for the same purpose."Zoning By-Laws of the Town of Falmouth,s 18(amended through July 1, 1975). Bridgewater v. Chuckran, 351 Mass. 20, 217 N.E.2d 726 (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.... (3) Whether the current use is 'different in kind in its effect on the neighborhood.' " (Citations omitted.) Id. at 23, 217 N.E.2d 726, quoting from Massachusetts Broken Stone Co.v. Weston,346 Mass.657,662, 195 N.E.2d 522(1964),and Medford v.Marinucci Bros.&Co.,344 Mass.50,60, 181 N.E.2d 584(1962).The property owner bears the burden of proving the requisite similarity between the current use and the original nonconforming use.Bridgewater v.Chuckran,supra 351 Mass.at 24,217 N.E.2d 726.The facts found by the judge support his conclusion that the current use of the hotel satisfies none of the three standards. The nature and purpose of the use made of the hotel's facilities have changed dramatically.In 1926,the property was operated**218 as a full-service resort hotel whose primary purpose was to provide lodging,meals,and entertainment for overnight guests. In recent years, by contrast, management has presented the hotel to the public as"the largest entertainment complex on Cape Cod."The hotel has been billed as"Three Clubs under One Roof'with the aim of attracting the public in large numbers.The change is comparable*213 to that in Bridgewater v.Chuckran,supra,where property formerly used in connection with a house building business became the site of a concrete manufacturing and supply business.This court found a change in the nature and purpose of the use where the mixing of concrete had been 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 transformed from a"merely incidental"aspect of the general construction business to a major enterprise in which the sale of concrete to others dominated.Id.351 Mass.at 23,217 N.E.2d 726.In Wellesley v.Brossi,340 Mass.456, 164 N.E.2d 883(1960),the prior nonconforming use of the property in question was the incidental storage of materials and equipment in connection with the resident's parttime masonry work.The court found that the storage of a large amount of material in connection with a fulltime masonry and general building business was not a continuation of,but rather a change in the character and purpose of,the prior nonconforming use.Id.at 465, 164 N.E.2d 883. In the case now before us, lodging and meals have been supplanted as the dominant business of the hotel by fully developed entertainment facilities designed especially to attract crowds of young people.The judge's description of the current situation is apt:"this enterprise is much less a hotel with entertainment facilities present for its guests and the public,than it is an entertainment complex with some guest rooms." A comparison of the 1926 and current uses of the hotel demonstrates a fundamental difference in "the quality or character,as well as the degree,of use."Bridgewater v.Chuckran,supra 351 Mass.at 23,217 N.E.2d 726.The same space which formerly housed a dining room,reading room,guest rooms,and lobby now houses seven bars distributed among three"clubs"and a game room.A kitchen equipped to prepare large quantities of food for diners who ate in the dining room has been scaled down to a small,short-order operation not much greater than that found in many households and staffed by only three or four employees.A predominately middle-aged and older clientele has been displaced by young people who are encouraged to patronize the hotel for its bars and nightlife.While the hotel has always served*214 liquor,it was formerly served only in the dining room and at occasional dances.Now the sale of liquor accounts for sixty to seventy percent ofthe hotel's revenues and is a central focus of the hotel's entertainment facilities.While hotel guests and the public were offered bingo,cards,movies,and dances in the lobby in 1926,today's guests are offered a choice among three nightclubs.Changes far less drastic than these have been held to constitute impermissible differences in quality.See,e.g.,Jasper v.Michael A.Dolan,Inc.,355 Mass. 17,242 N.E.2d 540(1968)(change from sale of beer and wine in connection with food store to sale of all alcoholic beverages in separately-conducted package store);Hinves v. Commissioner of Pub.Works of Fall River,342 Mass.54, 172 N.E.2d 232(1961)(catering service involving cooking and preparation of food is use different in quality from operation of a grocery store). Cape Resort's reliance on the rule that a mere increase in the volume of business done does not constitute a change in use is misplaced. White it is true that a use is not different in kind simply because it is bigger,Building Comm'r of Medford v.McGrath,312 Mass.461,462,45 N.E.2d 265(1942),the increased use must be attributable to growth of the original nonconforming use in order to fall within the rule.Kreger v.Public Bldgs.Comm'r of Newton,353 Mass. 622, 627, 234 N.E.2d 283 (1968). Even where the facility in which a business is conducted remains the same, a significant increase in activity caused by a change in operating procedures will not be protected.Id.In the Kreger case, the increased business**219 followed a change from a retail to a wholesale fuel oil operation.In the case of the hotel, the increased activity followed a shift in emphasis from lodging and meals to night entertainment.As in Kreger,this was more than a growth in business;it was a substantive change in use. Cape Resort argues that the changes that have been made in the hotel's ground-floor entertainment offerings merely reflect changes in public tastes in the years between 1926 and the present and that a disco and electronic game room are, in effect,modem equivalents of dances in the hotel*215 lobby and bingo.It is true that a valid nonconforming use does not lose that status merely because it is improved and made more efficient.Berliner v.Feldman,363 Mass.767,775, 298 N.E.2d 153 (1973). Wayland v.Lee,325 Mass. 637,643,91 N.E.2d 835(1950). Such changes are permissible, however,only if they are"ordinarily and reasonably adapted to the original use and do not constitute a change in the original nature and purpose of the undertaking." Berliner v.Feldman,supra. The facts found by the judge(which are amply supported by the evidence)indicate that the expansion and updating of the hotel's activities were not adapted to the original nonconforming use. Thus the shift from hotel to"entertainment complex"constitutes a change in the nature and purpose ofthe undertaking.This transformation of the hotel cannot be justified as"modernization"to accommodate ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 8 a changed society. Cape Resort urges us to conclude that the entertainment facilities in question are a permissible aspect of the hotel business.In support of this claim it cites cases such as Goff v.Fowler,3 Pick.300(1826),and Bennett v.Inspector of Bldgs.of Cambridge,270 Mass.436,170 N.E.412(1930).Both of these cases involved issues of statutory construction and not the issue whether a hotel's status as a valid nonconforming use is affected by a significant growth in entertainment offerings. The question in Goff was whether a building near an inn was a"dependency"of the inn (under a statute regulating liquor licenses)and therefore covered by the inn's liquor license.In Bennett a property owner had been granted a permit to erect a hotel which contained a banquet hall and the issue was whether the hall was authorized by a provision of the relevant zoning by-law which permitted"accessory"buildings to be used for"business...customarily incidental to the building of which it is an accessory."Bennett,supra at 441, 170 N.E.412.In any event it is clear that the sale of alcohol in Goff and the banquet hall in Bennett were found to be incidental to the primary use of the property as a hotel. As the judge's findings in the instant case demonstrate, both the current operation of the Brothers Four and the advertising*216 suggest that lodging and food service at the hotel have become"dependencies"of the primary use as an entertainment complex.It could hardly be maintained that the current operation of the ground-floor entertainment facilities,together with the minimal sale of food and lodging,is"common in the conduct ofhotels." Bennett v.Inspector of Bldgs.of Cambridge,supra 270 Mass.at 444, 170 N.E.412. Support for this conclusion can be found in the fact that Cape Resort has adopted the name Brothers Four rather than Terrace Gables Hotel or Cape Resort Hotel. Cf. Bridgewater v.Chuckran,supra(change of name in telephone listing and on vehicles of business supported finding of change in use). Finally,it is clear that the judge was correct in fmding that the current use of the hotel property has an effect on the neighborhood"different in kind"from the effect of the use in 1926.Even when allowance is made for the limited use of automobiles in 1926, it is clear that the development of the hotel as a nighttime entertainment center capable of accommodating over 800 people has caused traffic and noise problems wholly different from those which would be generated by a business run primarily as a hotel.The change in effect on the surrounding area is sufficiently illustrated by the findings that nearby residents are sometimes kept awake until 2 or 3 A.M. and that management has found it advisable to station up to twelve employees outside**220 the hotel at closing time to direct traffic and promote order. The findings,therefore,fully support the judge's conclusion that,under all free of the tests reviewed in Bridgewater v. Chuckran,supra,Cape Resort has failed to sustain its burden of proving that the operation of the hotel is not a change in use. [2]2.Effect of building permits and variance granted to prior owners of hotel.Cape Resort also contends that the present use of the hotel's ground-floor facilities is protected by the statute of limitations contained in CSL.c.40A,s 7.[FN8]*217 The claim is that the current use of the hotel is in accordance with certain permits granted to previous owners and that the passage of over six years since the use allowed by these permits commenced bars any action to limit the current use. The facts on which this claim rests are as follows.In 1956,the hotel's owner received a permit to enclose an open porch on one corner of the hotel.The application for the permit states only that the owner proposes to enclose a porch.There is no indication as to the reasons or need for the change.In 1961,a further building permit was granted.The application for this permit states that the owner"propose(s)to add 2P X 43'to side of present hotel&remodel a portion of interior." When it was completed,this addition housed the frolic room.It now houses the show lounge. FN8.The original version of this statute of limitations was passed in 1970 and was found in G.L.c.40A,s 22. See St.1970, c. 678, s 1. General Laws c. 40A, s 7,which was part of a new c.40A passed in 1975, see St.1975,c.808,s 3,reads in pertinent part(with former s 22 language in brackets):"(I)freal property has been improved and used in accordance with the terms of the original building permit,...no action...,the effect or purpose of which is to compel the abandonment,limitation or modification of the use(contemplated)allowed by said permit...by reason of any alleged violation of the provisions of this chapter,or of any...by-law adopted 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 9 thereunder,shall be maintained,unless such action...is commenced...within six years next after the(issuance of such permit)commencement of the alleged violation of law." • The judge found that the current use of the original frolic room is protected under GL.c.40A,s 7,while the uses being made of the remainder of the ground floor of the hotel are not.We agree with those conclusions. Well over six years had elapsed between the time the frolic room was built in 1961 and the time the association brought its action to compel Cape Resort to limit its use of the space in 1977.Thus,c.40A,s 7,bars the attempt to enforce the by-law with respect to the frolic room if it"has been improved and used in accordance with the terms of the original building permit."The association argues(1)that s 7 has no application to this case because"original building permit" is limited to a permit which authorizes the"erection of a new and independent building or structure,"and*218 that the 1961 permit was not such a permit,[FNS']and(2)that,in any event,the frolic room is not now being used in accordance with the 1961 permit FN9. The association concedes that there may not have been such a permit for the erection of the original Terrace Gables Hotel. We agree with the judge that the meaning of"the original building permit"is not as narrow as the association suggests. The association's position rests largely on an erroneous interpretation of the words"real property,"in the phrase"if real property has been improved and used in accordance with the terms of the original building permit,"as including only raw land."Real property,"however,has always comprised both land and buildings.Bates v.Sparrell,10 Mass.323,324 (1813)("things real are lands,tenements,and hereditaments"(citing Blackstone)).Furthermore,the phrase"use allowed by said permit"is not limited only to a new and distinct use to which a new building would be put,as the association would have it.The use may be a new one or it may be the same as the use to which an existing structure on the land is being put.Under the association's view of s 7,no alterations of or additions to existing buildings,even those undertaken in accordance with properly issued building permits,**221 would be protected by the s 7 statute oflimitations.This result conflicts with the obvious intent of the Legislature to limit the time within which building permits could be attacked as issued in violation of a zoning regulation.See generally Holmes,Zoning Limitations-Limiting Enforcement of Laws Relating to Buildings,55 Mass.L.Q.377(1970).The judge correctly interpreted the words"original building permit" as meaning the first permit issued with respect to a particular improvement of real property.We need not decide the exact range of improvements to real property to which the words"original building permit"might apply.The frolic room was clearly such an improvement,and the permit authorizing its construction was the"original building permit"for purposes of our analysis. *219 The"Preliminary Layout"which accompanied the 1961 application for a permit to build the frolic room indicated very clearly that the space would include aba,cocktail lounge,and entertainment facilities.Although the record contains only the application for the permit,and not the permit itself,all parties appear to concede that a permit was issued,and the judge so found.The show lounge currently occupying the space is being used for the same purposes as it predecessor, the frolic room,was used,i.e.,afternoon"happy hours"and dancing,drinking,and entertainment in the evening.Thus, Cape Resort meets the requirement that the space be"used in accordance with the terms of the original building permit" G.L.c.40A,s 7.The judge correctly held that even if this use of the space was illegal in 1961,under GL.c.40A,s 7, the association's action to enjoin that use comes too late. Cape Resort's further contention that GL.c.40A,s 7,protects the entire present use of the hotel's ground floor must, however,be rejected.The sole support for this contention is the fact that an open porch on the ground floor was enclosed pursuant to a 1956 building permit and for the purpose of enlarging the inside floor area.Cape Resort introduced no 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 10 evidence of the use to which the enclosed porch was put in 1956.It appears from a drawing of the present layout of the hotel's ground floor that the porch no longer constitutes a distinct space in the hotel but is simply apart ofthe game room. In short,Cape Resort did not meet its burden of showing that the porch is being"used in accordance"with the permit authorizing its enclosure. Under these circumstances the 1956 permit cannot serve as the source of any additional protection for the current use of the hotel. [3]Finally,it is also clear that permission to operate the present ground-floor facilities cannot be implied from a variance for a parking lot granted to a prior owner of the hotel in 1969 by the Falmouth board of appeals.All the hotel's owner requested and all he received in 1969 was permission to use a vacant portion of his land for a parking lot,*220 for which fees would be charged.The legality under the zoning law of the activities carried on inside the hotel was not before the board of appeals and was not necessary to its decision.So far as the board's written decision reveals,the board assumed only that the Terrace Gables Hotel was a permitted nonconforming hotel in a residential area. The specific findings supporting the decision to grant the variance related to the inability of the hotel owner to provide adequate parking space . for guests unless he could build a new lot.The effect of the variance was to alleviate parking problems at the hotel,not to legalize all uses to which hotel buildings were being put. The judge correctly refused to attribute any broader significance to the granting of this variance. [4] 3.Use of the"lodge"to house guests.The lodge is a small wooden structure located to the rear of the main hotel building.It contains fourteen guest rooms and was used prior to 1962 for housing guests of the hotel.The association in effect concedes that this use of the lodge was a valid prior nonconforming use.In 1962 the lodge was conveyed to a Mr.and Mrs.Daley.There was evidence that the Daleys used the lodge as a rooming house.On June 27, 1975,Cape Resort acquired the**222 property and it was used again to accommodate overnight guests ofthe hotel.The association contends that the lodge enjoyed protection as a nonconforming use only by virtue of its association with the main hotel building and that it lost that protection when it was separated from the hotel and sold in 1962. The association characterizes the 1962 conveyance as an abandonment of the use of the lodge to house hotel guests.Under s 18(d)of the Falmouth zoning by-law,"when a non-conforming use has been discontinued for a period of one year,it shall not be re-established...."The word"discontinued"is the legal equivalent of"abandoned."Pioneer Insulation&Modernizing Corp.v.Lynn,331 Mass.560,565, 120 N.E.2d 913(1954). [5][6][7] We agree with the trial judge that the evidence does not establish an abandonment. Under our cases an abandonment of a nonconforming use results from the concurrence*221 of(1)an intent to abandon and(2)voluntary conduct which carries the implication of abandonment.Pioneer Insulation&Modernizing Corp.v.Lynn,supra.Dobbs v.Board of Appeals of Northampton,339 Mass.684,686, 162 N.E.2d 32(1959).The sale of property protected as a nonconforming use does not by itself establish an abandonment of the use.Wayland v.Lee,325 Mass.637,642-643, 91 N.E.2d 835(1950).82 Am.Jur.2d Zoning and Planning s 181(1976).See Revere v.Rowe Contracting Co.,362 Mass. 884,885,289 N.E.2d 830(1972)("The right to continue...a nonconforming use after adoption of zoning regulations is not personal to the particular owner or occupant on the effective date of the regulation").In this case the lodge has at all times been used for the commercial housing of guests.Furthermore,we find no violation of s 18(c)of the Falmouth zoning by-law,which provides that"(w)herever a non-conforming use has been changed to a more restricted use or to a conforming use, it shall not again be changed to a less restricted use."..The judge's conclusion that the changes in ownership did not produce any material change in the use of the lodge was warranted by the evidence. [8]4.Use of the"annex"to house hotel guests.The annex is,like the lodge,a small wooden building behind the main hotel.Until 1962 the annex was used as a dormitory for hotel employees.It was sold in 1962 to Asco Real Estate Trust and was acquired by Cape Resort in 1972.The judge found that some time after 1972 the annex was"converted"into accommodations for paying guests ofthe hotel.He noted,though,that there was no"significant evidence...concerning what,if any alteration or renovations were done to effect this conversion."In 1977 Cape Resort applied for and received a permit"to repair existing annex due to fire damage by replacing damaged area."The record does not reveal whether 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 11 the work done pursuant to this permit facilitated the change from employees'quarters to guest accommodations.There was also no evidence on whether the shift in clientele provoked a change in the effect on the neighborhood. *222 The association has never challenged the lawfulness of the use of the annex as an employee dormitory,and we assume that this use was protected as a nonconforming use.At trial the association apparently argued that the prior nonconforming use of the annex had been lost by abandonment.All that has been shown,however,is that the property was sold in 1962.As we held above,a mere change in ownership does not make out an abandonment. The remaining issue is whether the change in lodgers from employees to paying guests is an impermissible change of the nonconforming use.Under s 18(a)of the Falmouth zoning by-law"a non-conforming use may continue to be used for the same purpose."[FN10]Cape Resort argues that the current use of the annex meets the tests set out in Bridgewater v.Chuckran,351 Mass.20,217 N.E.2d 726(1966),and discussed above. FN10.Under GL.c.40A,s 6,local zoning by-laws shall apply to"any change or substantial extension"of a prior nonconforming use. **223 Although the question is a close one,the evidence warrants the judge's conclusion that a change in use occurred. Several previous decisions of this court support this conclusion.In McAleer v.Board of Appeals of Barnstable, 361 Mass.317,280 N.E.2d 166(1972),a nonconforming inn had been granted a special permit to convert a dormitory for employees into"motel-like accommodations for overnight guests,"id.at 322,280 N.E.2d 166,under a by-law provision authorizing alterations of nonconforming buildings or structures upon the grant of such a special permit.A Superior Court judge annulled the decision to grant this permit because of the prospective conversion of the dormitory"to a type of use different from(the original nonconforming use)."Id.at 319,280 N.E.2d 166.This court affirmed,holding that "the occupation by lodgers of what had been employees'quarters,"id.at 321,280 N.E.2d 166,was a change in use.It is true that in McAleer,structural changes were to be made in order to effect the change in use and this court's opinion noted that"a change is proposed not only in the use but also in the nature of the facilities:'Id.at 322,280 N.E.2d 166. However,*223 even assuming that in the instant case the lack of evidence of structural changes establishes that there were none,[FN11]we think a change in purpose under s 18(a)of the by-law has been demonstrated.McAleer suggests as much,since physical alterations of a nonconforming structure (pursuant to a permit)were clearly authorized by the relevant by-law;the issue was whether the physical alterations were desired in order to effect a change in use. FN11.We note that Cape Resort bore the burden of proof on the nonconforming use issue.Wellesley v.Brossi, 340 Mass.456,460,164 N.E.2d 883(1960).Colabufalo v.Public Bldgs.Comm'r of Newton,332 Mass.748, 751, 127 N.E.2d 564 (1955). If Cape Resort believed that the absence of structural changes was legally significant,it bore the burden of establishing this fact at trial. Furthermore,the change in use of the annex is analogous to the change in use in Lexington v.Bean,272 Mass.547, 172 N.E. 867 (1930). It was held there that"(t)he use of(a building) ... for the commercial purpose of repairing motor vehicles for hire is'substantially different'(under the relevant by-law)from(the prior valid nonconforming)use of it by a person residing on the premises for the purpose of repairing motor vehicles belonging to him as incidental to his trucking and express business and the occasional permissive use of it by persons storing automobiles on the premises." Id.at 553, 172 N.E. 867. In the case of the annex,the building was formerly used as lodgings for employees,a use incidental to the operation of the main building as a hotel. Now the annex is being operated as a commercial venture in its own right. In effect,Cape Resort has expanded the use of the annex by adding a new service. Such an expansion has been held to constitute a change in use. Jasper v.Michael A.Dolan,Inc.,355 Mass.17,24,242 N.E.2d 540(1968) (addition of hard liquor to store selling beer and wine). See also 1 RM.Anderson,American Law of Zoning 2d s 6.46 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 12 (1976). The evidence warranted the judge's conclusion that a change in use of the annex had occurred and that its current use to house guests of the hotel is in violation of Falmouth's zoning by-law.We note,as the judge did,that Falmouth's by-law has been amended since these suits were begun so*224 that nonconforming structures or uses may now be extended, altered,changed,or rebuilt if a special permit is obtained from the board of appeals.Zoning By-Laws of the Town of Falmouth s 1222(adopted April,1979).Since the 1979 by-law also provides that hotels are allowed in single residence districts upon a grant ofa special permit(see s 3315(a)),both s 1222 and s 3315(a)provide avenues by which the current use of the annex might be legalized.In short,the town of Falmouth makes provision in its zoning by-law for property owners in Cape Resort's position.Cape Resort should seek its remedy at the local level. [9]5.Laches and estoppel.Cape Resort concedes in its brief that"prior Massachusetts case law establishes that laches or**224 estoppel is not a defense to an action to enforce municipalities'by-laws or zoning ordinances."See McAleer v.Board of Appeals of Barnstable,361 Mass.317,322-323,280 N.E2d 166(1972)(laches);Ferrante v. Board of Appeals of Northampton,345 Mass.158,162,186 N.E.2d 471(1962)(estoppel);Everett v.Capitol Motor Transp.Co., 330 Mass.417,421, 114 N.E.2d 547 (1953)(laches).This is true even where there has been a substantial financial investment of the sort Cape Resort alleges occurred in its own case.McAleer,supra 361 Mass.at 322,280 N.E.2d 166. [10]Nevertheless,Cape Resort urges us to fmd that the relief sought by the association and the building inspector is barred,citing us to the only decision of this court in a zoning case which appeared to apply a laches theory,Chilson v. Zoning Bd.of Appeals ofAttleboro,344 Mass.406,409,182 N.E.2d 535(1962).In Chilson,however,the town building inspector had approved the landowner's move of a nonconforming use from one building to another on the same premises,and the move had been prompted by the town's relocation of a street.Furthermore,this court found that the move"was colorably within the exemption applicable to nonconforming uses."Id. Whatever the exact reach of the Chilson holding might be,see McAleer v.Board of Appeals of Barnstable,supra 361 Mass.at 323,280 N.E.2d 166, [FN12] it does not cover this case. Neither *225 the dramatic changes in the nonconforming use of the hotel's ground-floor space nor the changed use of the annex were specifically approved by an official charged with enforcing the Falmouth zoning by-law.Furthermore,the development of the hotel as an entertainment complex was not colorably within the exemption provided in the by-law for nonconforming uses.Laches and estoppel provide Cape Resort with no defense,and we decline the invitation to overrule prior cases establishing this rule. FN12.It was pointed out in Gattozzi v.Director of Inspection Servs.of Melrose,6 Mass.App.889,890,376 N.E.2d 1266(1978),that there is some question whether laches is an available defense in actions in the nature of mandamus to compel a building inspector to enforce a zoning ordinance.Compare Chilson v.Zoning Board of Appeal of Attleboro,344 Mass.406,409, 182 N.E.2d 535(1962),with McAleer v.Board of Appeals of Barnstable,361 Mass.317,323,280 N.E.2d 166(1972).Since we find that even under Chilson laches would not be a defense in this case,we do not reach this issue.In many cases,however,the statute of limitations in ('iL.c.40A,s 7,will make it unnecessary for defendants to rely on laches or estoppel. [11]6.Constitutional claims and scope of relief granted. Cape Resort argues that the First and Fourteenth Amendments to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution prohibit a court from restricting dancing and music in any nonconforming hotel,whether or not the hotel offered entertainment at the time it became a nonconforming use,on the theory that any such restriction would violate the hotel patrons'and owners'rights of free speech. On this ground,Cape Resort challenges the injunction entered against it. The only case cited in support of this proposition is Commonwealth v.Sees,374 Mass.532,373 N.E.2d 1151 (1978). In Sees this court struck down,solely under art.16,a city's application of a local ordinance to prohibit topless dancing in a bar. The opinion of the court emphasized that the ordinance as applied in Sees involved town officials in distinguishing protected 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 13 expression on the basis of content and that no governmental interest was shown to warrant the effort. Id.374 Mass.at 537,373 N.E.2d 1151. In this case,there is no contention that the zoning by-law of Falmouth has been applied for such an impermissible purpose. Sees neither held nor implied that the owner of a nonconforming*226 hotel has an absolute right to develop facilities for music and dancing on as large a scale as he sees fit.Cape Resort points to no case so holding.No constitutional violation has been made out. Cape Resort does appear,however,to have a valid complaint with respect to the scope of the injunctive relief ordered by the judge.Cape Resort was enjoined"from using those portions of the ground floor**225 facilities known as the Disco Room...,the Pub,and the Game Room for the purposes of selling or providing alcoholic beverages,providing live entertainment, providing recorded music and dancing, and providing coin operated machines such as pinball machines and billiard tables." The judge specifically found, however, that in 1926, when the hotel became a nonconforming use,drinking, music, and dancing were offered to some extent in some of the areas covered by the injunction. It appears,therefore,that the injunction ordered by the judge was too broad.We remand the cases for reconsideration of the scope of the relief granted in light of the scope of the protected prior nonconforming use.In fashioning a revised injunction,the judge should seek to ensure that Cape Resort operates its facility as ahotel,with primary focus on lodging, meals,and entertainment for overnight guests.Any upgrading of the hotel which is reasonably adapted to these functions would be permissible.Thus,dining facilities may be open to the public and in conjunction with these facilities music and alcoholic beverages may be provided.Rooms not used for dining(apart from the frolic room which draws its protection from another source)may be used for recreational activities ancillary to the hotel use.It would also be appropriate for the hotel to hold dances or other similar events for the general public as long as this type of activity is merely ancillary to the primary use of the property as a hotel furnishing meals and lodging to overnight guests. In short,the revised injunction should limit Cape Resort's activities to those that could be said to*227 have reasonably evolved from the basic 1926 use of the property as a hotel. The judgments are reversed and the cases are remanded to the Superior Court for the entry of new judgments providing relief consistent with this opinion. So ordered. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 14 Westlaw. 555 N.E.2d 534 Page 1 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) P Supreme Judicial Court of Massachusetts, Suffolk. DERBY REFINING COMPANY,et al.nn FN1.Belcher New England,Inc.The plaintiffs are affiliated corporations which we shall refer to collectively in this opinion as Belcher because Belcher is operating the liquid asphalt facility in issue. v . CITY OF CHELSEA,et atm FN2.The inspector of buildings of Chelsea.We shall refer to the defendants collectively as Chelsea. Argued April 4, 1990. Decided June 19, 1990. Operator of asphalt company brought action against city to determine whether new zoning ordinance applied to its property.The Land Court Department, Suffolk County, Marilyn M. Sullivan, J., determined that operator's use of property was valid nonconforming use,and city appealed.After transferring case from the Appeals Court on its own motion,the Supreme Judicial Court,Greaney,J.,held that:(I)there was preexisting lawful use of property, and(2) present use of property as liquid asphalt storage facility was not change or substantial extension of prior use. Affirmed. West Headnotes [1]Zoning and Planning 414'327 414 Zoning and Planning 414W Nonconforming Uses 414k327 k Continuance or Change of Use in General.Most Cited Cases Right to continue nonconforming use is not confined to existing user,but runs with land.M.GL.A.c.40A,§6. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. • 555 N.E.2d 534 Page 2 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E2d 534) [2]Zoning and Planning 414 0=336.1 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases (Formerly 414k336) Right to continue nonconforming use can be lost if predecessor in title has abandoned use,that is,intended to abandon and engaged in voluntary conduct,whether affirmative or negative,which carried implication of abandonment.M.GL.A. c.40A, §6. [3]Zoning and Planning 414 X336.1 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases (Formerly 414k336) Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Mere nonuse or sale of property does not,by itself,constitute abandonment of nonconforming use.M.GL.A.c.40A, §6. [4]Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Predecessor's conduct in"mothballing"facility,applying for property tax abatement,and notifying Coast Guard that it no longer intended to operate deep-water terminal on property did not establish that predecessor "abandoned" nonconforming use of property,given predecessor's affirmative steps to market facility as petroleum storage terminal; manner in which predecessor shut down facility evidenced intent to preserve facility in good condition for profitable resale,application for property tax abatement reflected fact that facility was no longer producing income for predecessor, and letter to Coast Guard was mandated by federal law once predecessor determined it would close facility pending sale. M.GL.A.c.40A,§6. [5]Zoning and Planning 414 0=326 ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 555 N.E.2d 534 Page 3 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) 414 Zoning and Planning 414VI Nonconforming Uses 4I4k326 k.Unlawful Use.Most Cited Cases Valid nonconforming use is not rendered unlawful by failure to possess requisite government approval,provided that such approval can be easily obtained.M.GL.A.c.40A,§6. 161 Zoning and Planning 414 0'326 414 Zoning and Planning 414VI Nonconforming Uses 414k326 k.Unlawful Use.Most Cited Cases Absence of Coast Guard approval for use of property as liquid asphalt storage facility at time of zoning change did not render valid nonconforming use unlawful; occupant's initial lack of approval was due in large part to federal law compelling predecessor to cancel existing letter of intent,which cancellation was necessary before new approval could be obtained,and occupant obtained approval shortly after completing renovations to facility.M.GL.A.c.40A, §6. [7]Zoning and Planning 4144 '327 414 Zoning and Planning 414VI Nonconforming Uses' 414k327 k.Continuance or Change of Use in General.Most Cited Cases Zoning and Planning 414 0'329.1 414 Zoning and Planning 414W Nonconforming Uses 414k329 Enlargement or Extension of Use 414k329.I k In General.Most Cited Cases (Formerly 414k329) Occupants use of property must not constitute change or substantial extension of predecessor's previous use to be protected as preexisting, nonconforming use; inquiries relevant to determination of whether change or substantial extension has occurred are whether current use reflects nature and purpose of prior use,whether there is difference in quality or character,as well as degree,of use,and whether current use is different in kind in its effect on neighborhood. M.GL.A.c.40A,§6. [8]Zoning and Planning 414 0'321 414 Zoning and Planning 414VI Nonconforming Uses 414k321 k In General.Most Cited Cases Occupant of property,as one seeking protected status,has burden of establishing compliance with factors relevant to 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 555 N.E.2d 534 Page 4 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) valid nonconforming use determination based upon predecessor's prior use.M.G.LA.c.40A,§6. [9]Zoning and Planning 414 X328 414 Zoning and Planning 414VI Nonconforming Uses 414k328 k.Particular Cases as Involving Change of Use.Most Cited Cases Fact that product being delivered,stored,and distributed changed from one petroleum product to another petroleum product did not mandate conclusion that change in nature or purpose of use of property occurred, for purposes of determining whether use of property to store liquid asphalt was valid nonconforming use in view of previous use of property to store gasoline,kerosene,and other fuel products.M.GL.A.c.40A,§6. [10]Zoning and Planning 414 X328 414 Zoning and Planning 414VI Nonconforming Uses 414k328 k.Particular Cases as Involving Change of Use.Most Cited Cases Fact that liquid asphalt stored on property had to be kept heated did not compel conclusion that quality,character,and degree of use of property changed,for purposes of determining whether using property to store liquid asphalt was valid nonconforming use,though petroleum products previously stored on property were not heated. 1111 Zoning and Planning 414 X328 414 Zoning and Planning 414VI Nonconforming Uses 414k328 k.Particular Cases as Involving Change of Use.Most Cited Cases • Trial judge could properly conclude that use of property to store liquid asphalt was not different in kind from previous use of property to store petroleum products in its effect on neighborhood,despite offensive smells and potential health risks associated with present use;residents who testified at hearing admitted other businesses omitted offensive odors for years,and while evidence regarding comparative health risks of present and prior uses was conflicting,present use was more limited than prior use in both time and space.M.G.LA.c.40A,§6. **535*703 Ira H.Zalezmk,Boston,for defendant. Robert C.Gerrard(Carol R.Cohen,Boston,with him),for plaintiffs. Before LIACOS,C.J.,and WILKINS,LYNCH,O'CONNOR and GREANEY,JJ. • GREANEY,Justice. The question in this case is whether Belcher New England,Inc.(Belcher),may operate a liquid asphalt storage facility on waterfront property at 99 Marginal Street*704 in Chelsea.Belcher maintains that its use of the property is protected ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 555 N.E.2d 534 Page 5 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) under G.L.c.40A,§6(1988 ed.),as a prior nonconforming use,from the application of a new Chelsea zoning ordinance which purports to prohibit the use. Belcher also argues that the new Chelsea zoning ordinance is invalid. Chelsea maintains the converse of both propositions.We transferred the appeal from the Appeals Court on our own motion.We conclude,as did the Land Court judge who heard and decided the case,that the use is protected by CIL.c.40A, §6. Consequently,we need not address the arguments pertaining to the validity of the new zoning ordinance. Belcher brought the action in the Land Court r°to determine whether the new Chelsea zoning ordinance applied to the property.The judge conducted a lengthy trial,which included testimony from several expert witnesses and personal inspections of the property from the shore and from a tugboat.We take the facts from the judge's extremely thorough memorandum of decision. FN3. The action was brought pursuant to GL. c. 185, § 1G 1/2), and GL. c.240, § 14A(1988 ed.). See Banquet-Realty Co.v.Acting Bldg. Comm'r of Boston, 389 Mass.565,569-571,451 N.E.2d 422(1983). The property lies on the bank of the Chelsea Creek in Chelsea, in a highly industrialized neighborhood formerly designated as an industrial waterfront district.As described in Mahoney v. Chelsea,20 Mass.App.Ct.91,478 N.E.2d 160(1985),a decision**536 referred to by the judge as accurately depicting the area she observed on the views,"[t]he district is generally old and unattractive and is composed largely of oil tank farms, warehouses,junkyards, and a shipyard.Abutting the district is an industrial district which contains a junkyard,a truck sales office,a fruit and produce warehouse and land owned by the Quincy and Sun Oil Companies.The banks of the creek in East Boston across from the site are lined with oil tank farms and a salvage yard."Id at 92,478 N.E.2d 160. Title to the property was acquired in the 1920's by Texaco Oil Refining and Marketing,Inc.(Texaco),or its predecessor *705 corporations.Some time around 1960,Texaco constructed a petroleum storage facility on the property by installing seven large storage tanks,a dock,"breasting dolphins,"and a truck-loading ramp.Ocean-going tankers would dock at the breasting dolphins,hook onto the permanent system ofpiping,and pump their cargoes directly into the storage tanks. Those cargoes included three grades of gasoline,ship kerosene,two grades of aviation fuel,and a petroleum product called"No.2 fuel,"which is similar to diesel fuel.The petroleum products then would be pumped from the storage tanks to a loading rack for direct delivery into trucks by means of a second system of pipes equipped with downspouts.The facility also includes two brick buildings,which housed Texaco's offices,warehouses,and physical plant,and a separate garage to house and service delivery trucks. Texaco continued to operate the petroleum storage facility on the property until 1983,when,in response to changing economic conditions in the industry,it entered an agreement entitling it to joint use of a similar facility owned by Gulf Oil Corporation on Eastern Avenue in Chelsea.Texaco then proceeded to"mothball"the Marginal Street facility.This process included pumping out the storage tanks;hiring a contractor to clean them,purging the feed lines,filling them with a chemical preservative,and sealing them.The business office was closed,and its contents removed.However, Texaco continued to heat the building,and hired a security firm to check the premises. After"mothballing"the property,Texaco tried to sell it.Texaco marketed the facility in the same way that it customarily disposed of other properties no longer needed in the operation of its business.It placed advertisements in trade journals and made contact with petroleum suppliers to ascertain whether they might be interested in a purchase.In addition to these marketing efforts,Texaco hired a fur to install a"cathodic protection system"to preserve the steel of the empty tanks for the next user.Texaco also maintained the flammable storage licenses issued pursuant to GL.c.148,§13(1988 ed.),for the entire period during which the propertywas*706 on the market for sale.The judge found that Texaco"was ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 555 N.E.2d 534 Page 6 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) anxious to sell the facility and to realize the highest possible price therefor which would appear to be the use which had been made of the locus for many years." After one proposed sale fell through,Texaco succeeded in selling the facility to Derby Refining Company(Derby)on January 15,1986.On that same date,Derby leased the facility to Belcher.The Chelsea zoning ordinance in effect when Derby took title to the premises from Texaco provided for an industrial waterfront district.Permitted uses in this district included"oil and gas tank farms including distributive facilities."The use of the property as a petroleum storage facility thus was a conforming use at the time of Derby's acquisition of the property. Belcher immediately set about to determine the best use to make of the property.It ultimately decided to operate a liquid asphalt storage facility on the premises.'To prepare for this use,Belcher installed a hot oil heating system to heat the tanks and pipes so that the asphalt could be preserved in a liquid state for pumping.Belcher also insulated the exteriors of**537 three ofthe storage tanks to prevent heat loss,PD15 added scales to the truck-loading dock,and made various other modifications to the pipes,valves,and tanks.This work began in the summer of 1986. FN4.The judge found that,like the various gasolines and grades of fuel oil that Texaco had previously stored at the facility,liquid asphalt is a petroleum derivative. FNS.Of the seven storage tanks on the premises,Belcher utilizes only three in its asphalt storage operation. On March 14,1986,after Derby had purchased the property but before Belcher had begun work to prepare it for asphalt storage,notice appeared in the Chelsea Record,a newspaper of general circulation in Chelsea,of a public hearing to be held on proposed amendments to the zoning ordinance. The new zoning ordinance passed pursuant to that notice radically changed the permitted uses in the new waterfront district which was no longer zoned as an industrial waterfront district The new ordinance provides:"The*707 purpose of the Waterfront District is to provide an area for uses which are water related and/or which benefit from the proximity to the airport or the harbor,and to encourage public access to the waterfront."Belcher's intended use of the property as an asphalt storage facility was rendered a nonconforming use by this new zoning ordinance. In September of 1986,Belcher applied for a certificate of occupancy for the facility.After first determining that the certificate should issue,and notifying Belcher to that effect,the building inspector of Chelsea had second thoughts,and revoked the portion of the certificate relating to asphalt storage"pending the satisfactory documentation regarding the emission of objectionable vapors."Belcher continued to press for full approval,but decided to withdraw its application in February, 1987.In March, 1987,Belcher again applied for a certificate of occupancy.The application was denied, and this action ensued. The issue at trial was whether Belcher's use of the property as a liquid asphalt storage facility was protected as a preexisting, nonconforming use under G.L. c. 40A, § 6 (1988 ed.), set forth in relevant part below. FN6 The judge reasoned that the decision turned on the answer to two questions raised by the language of§6:(1)Was there a use of the property`lawfully in existence"on March 14,1986,the date of first notice concerning the proposed amendment to the zoning ordinances,and(2)Is Belcher's use of the property as *708 a liquid asphalt storage facility a"change or substantial extension"of Texaco's prior use of the property?The judge answered the first question in the affirmative, and the second in the negative. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 555 N.E.2d 534 Page 7 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) FN6. `Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun,or to a building or special permit issued before the first publication of notice of the public bearing on such ordinance or by-law required by section five,but shall apply to any change or substantial extension of such use,to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent...." This statute maintains the essential principles set forth in the prior G.L.c.40A,§5,for nonconforming uses and makes relevant the decision construing similar provisions of§5. 1.Preexisting lawful use.We agree with the judge that the case should be decided by application of the two provisions of CSL.c.40A, §6,quoted above,to the facts.The first consideration is whether the facility constituted a lawful use existing on the property when notice of the revision of the zoning ordinance was first published on March 14, 1986. Chelsea makes two arguments in support of its contention that there was no lawful,preexisting use on the property on March 14,1986.First,Chelsea contends that Texaco had abandoned use of the property when it mothballed the facility in 1983?"Second,Chelsea argues that,even assuming an abandonment had not occurred,Belcher's use of the property as a liquid asphalt storage facility is not a lawful use because Belcher lacked requisite United States Coast Guard(Coast Guard)approval.We address each argument in turn. FN7.There appears to be no dispute that Texaco's use of the property prior to 1983 was a valid use under the zoning scheme in effect at that time. '11538[1][2]a.Abandonment. Under Massachusetts law,the right to continue a nonconforming use is not confined to the existing user,but runs with the land. See Revere v. Rowe Contracting Co., 362 Mass. 884,885,289 N.E.2d 830 (1972).However,that right can be lost if a predecessor in title has abandoned the use.See Wayland v Lee,325 Mass. 637, 642 n. 2, 91 N.E.2d 835 (1950), and cases cited. To constitute an abandonment, the discontinuance of a nonconforming use must result from"the concurrence of two factors,(1)the intent to abandon and(2)voluntary conduct, whether affirmative or negative,which carries the implication of abandonment."Pioneer Insulation&Modernizing Corp. v. Lynn, 331 Mass. 560, 565, 120 N.E.2d 913 (1954). See Cape Resort Hotels, Inc. v. Alcohol Licensing Bd of Falmouth, 385 Mass.205,220-221,431 N.E.2d 213(1982);Dawson v.Board of Appeals of Bourne, 18 MassApp.Ct. 962,963,469 N.E.2d 509(1984)r" FN8.We reject Chelsea's suggestion that the judge erred by not finding that the lack of active use in 1986 made the use nonexistent. It is not disputed that Texaco had been operating a petroleum storage facility on the property for several years prior to the zone change.The fact that active use of the storage facility had been temporarily suspended did not require a finding that the use no longer existed.See Morin v.Board ofAppeals of Leominster, 352 Mass.620,623,227 N.E.2d 466(1967),where the court dealt with an analogous situation in which the use of property had been suspended,and concluded that the use would be in existence as a valid nonconforming use "provided [the owner] had not abandoned the use ... prior to the adoption of[new] ordinance."Thus,the relevant issue in this case is whether that previous use had ceased to exist for practical purposes prior to March 14, 1986. See 1 R.M.Anderson,American Law of Zoning § 6.65 (3d ed. 1986). Chelsea's contrary argument essentially attempts to convert the noun`arse,"as it is employed in G.L.c.40A, §6,to the verb"use"which conveys ongoing activity.The distinction between the terms is pointed out in Paul v. Selectmen of Scituate, 301 Mass.365,370, 17 N.E.2d 193 (1938).Accordingly,the judge was correct in applying the subjective abandonment test to the facts.By contrast,the cases cited by Chelsea,see Everett it 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 555 N.E.2d 534 Page 8 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) • Capitol Motor Transp. Co., 330 Mass.417, 114 N.E.2d 547(1953);Billerica v. Quinn, 320 Mass.687,71 N.E.2d 235(1947),deal with the issue whether any prior use had even begun to exist,and are,for that reason alone,inapposite. [3][4]*709 Mere nonuse or sale of property does not,by itself,constitute an abandonment.See Cape Resort Hotels,Inc. v.Alcohol Licensing Bd of Falmouth, supra 385 Mass. at 221,431 N.E2d 213;Pioneer Insulation&Modernizing Corp.v.Lynn,supra 331 Mass.at 565,120 N.E.2d 913;Wayland v Lee,supra 325 Mass.at 642 n.2,91 N.E.2d 835; Paul v.Selectmen of Scituate, 301 Mass.365,370, 17 N.E.2d 193(1938).Additional facts must be present before a finding of abandonment is warranted.Chelsea points primarily to three such facts:that Texaco(1)"mothballed"the facility;(2)applied for a property tax abatement for 1985;and(3)notified the Coast Guard that it no longer intended to operate a deep-water terminal on the premises. The fact that Texaco"mothballed"the facility constitutes evidence of nonuse,but is not enough by itself to require a finding of abandonment.We agree with the judge that the reasonable inference to be drawn from the manner in which Texaco shut down the facility is precisely the opposite of abandonment-that Texaco intended to preserve the facility in good condition for a profitable resale.We also agree with the judge that Texaco's application for a 1985 property tax abatement merely reflected the fact that the facility was no longer producing income for Texaco.Consequently,that*710 application could be found by the judge as not showing an intent to abandon. Chelsea makes much of a letter sent by Texaco to the Coast Guard in which Texaco stated that it no longer intended to operate a deep-water terminal facility. Chelsea suggests, referring to Dawson v. Board of Appeals of Bourne, 18 Mass.App.Ct.962,469 N.E.2d 509(1984),that the letter manifests an intent to abandon"as a matter of law."Reliance on the Dawson decision is misplaced.In Dawson,the plaintiffs had operated a nursing home prior to a change in the zoning law which rendered such use nonconforming.Approximately two years after closing the home and voluntarily surrendering their license to operate it, the plaintiffs sought a special permit to use the premises for a different nonconforming use**539(apartments).In reversing the judgment for the plaintiffs,the Appeals Court held that"there was an abandonment of the use of the property as a nursing home when the license to maintain a nursing home was surrendered."Id at 963,469 N.E.2d 509. The holding in Dawson rested on the fact that the plaintiffs voluntarily surrendered their operating license. By comparison,Texaco's action was mandatory;Federal law required it to"cancel,in writing,the letter for any facility at which oil transfer operations are no longer conducted."33 C.F.R. § 154.110(c)(1989).Once Texaco determined that it would close the facility pending a sale,it had no choice but to notify the Coast Guard of the cancellation of its letter of intent.This involuntary action carries little persuasive weight when compared with Texaco's voluntary action of diligently renewing its flammable storage licenses in each year preceding the sale to Derby.See Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass.App.Ct. 450, 454455, 503 N.E.2d 464 (1987) (maintaining an innkeeper's license indicates an intent to use the premises as an inn).There are also no clear indicia of abandonment.For example,the property was not left unprotected or unsecured,it was not changed to a conforming use,and no buildings were demolished.See 4 A.H.Rathkopf&D.A.Rathkopf,Law of Zoning and Planning,§51.08,at 51-144-145(1983 & 1989 Supp.). Keeping in mind *711 that"[a]bandonment is primarily a question of fact," Paul v. Selectmen of Scituate, 301 Mass.365,370, 17 N.E.2d 193(1938),we agree with the judge that Texaco's efforts,together with the affirmative steps taken to market the facility as a petroleum storage terminal,"are illustrative of Texaco's attempt to maintain the integrity of the premises as a marine distributive facility in order to sell it for such use.In short,even if Texaco had no further use of the locus for its own corporate purposes,it did not intend to surrender such use" [5][6]b.Lawfulness ofBelcher's use.Chelsea next argues that the asphalt storage facility was not lawfully in existence 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 8 555 N.E.2d 534 Page 9 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) at the time of the change to the zoning ordinance because Belcher at that time did not have a letter of intent to operate its facility on file with the Coast Guard. A valid nonconforming use is not rendered unlawful by failure to possess requisite government approval, provided that such approval can be easily obtained. See Selectmen of Wrentham v. Monson,355 Mass.715,717-718,247 N.E.2d 364(1969).Here,Belcher's initial lack of Coast Guard approval was due in large part to the Federal regulation which compelled Texaco to cancel its existing letter of intent. 33 C.F.R. § 154.110(c).This cancellation was necessary before a new approval could be obtained.Furthermore,Belcher obtained Coast Guard approval shortly after completing its renovations to the facility.For these reasons,its use was not unlawful on the date of the zoning change. [7][8]2. Change or substantial extension. To be protected as a preexisting,nonconforming use,Belcher's use of the property must not constitute, in the language of CIL. c. 40A, § 6, a"change or substantial extension" of Texaco's previous use.See Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass.433,435436,86 N.E.2d 906 (1949)("A lawful nonconforming use of land existing at the time of the adoption of a zoning ordinance which may be continued is substantially the same use to which the land was devoted when the ordinance became effective and not some other substantially different use unless the ordinance otherwise provides").As the judge correctly ruled,the issue whether a"change or substantial extension"had occurred would be determined by the application*712 of the familiar three-part test enunciated in Bridgewater v. Chuckran, 351 Mass.20,217 N.E.2d 726(1966).Under that test,we inquire: (1) "Whether the[current]use reflects the'nature and purpose'of the[prior]use,"(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.'"Id at 23,217 N.E.2d 726,and cases cited.See Cape Resort Hotels,Inc.v.Alcohol Licensing Bd. of Falmouth,supra 385 Mass.at 212,431 N.E.2d 213;Revere v.**540Rowe Contracting Co.,362 Mass.884,885,289 N.E.2d 830(1972);Jasper v.Michael A.Dolan,Inc., 355 Mass. 17,23,242 N.E.2d 540(1968).As the one seeking protected status,Belcher had the burden of establishing compliance with the Bridgewater v. Chuckran test.See Cape Resort Hotels,Inc. v. Alcohol Licensing Bd of Falmouth, supra; Tamerlane Realty Trust v. Provincetown, supra 23 Mass.App.Ct.at 454,503 N.E.2d 464;Martin v.Board ofAppeals of Yarmouth 20 Mass.App.Ct.972,482 N.E.2d 336 (1985).n" FN9.Chelsea contends that the judge incorrectly placed the burden ofproof on it.Pointing to the judge's fmding that the evidence on the comparative health risks of petroleum fuels versus liquid asphalt was inconclusive, Chelsea argues that the judge's conclusion that no change in the use had occurred could have been based only on a misallocation of the burden of proof.However,comparative health risks were but one of several factors the judge considered on the issue of neighborhood impact,and her indication that the evidence was ambiguous was simply a reference to the inconclusive nature of the proof of that particular factor.As we shall discuss in more detail later in this opinion, other evidence before the judge provided support for her conclusion that, compared to Texaco's use,Belcher's use is not"different in kind in its effect on the neighborhood."A reading of the judge's decision and the transcript of the trial satisfies us that the judge was aware that Belcher had the burden of proof. [9]a.Nature and purpose of the use. Chelsea argues that the use of the facility has changed from the storage of fuel products to storage of abuilding material.In support of this contention,Chelsea cites to our opinion hi Jasper v.Michael A.Dolan,Inc.,355 Mass.17,242 N.E.2d 540(1968).The defendants in Jasper operated a food market and an adjoining beer and wine package store on a residentially zoned property.Because the store predated the zoning regulation, it constituted a protected preexisting, nonconforming use.After passage of the *713 zoning ordinance,however, the defendants sought to transform the entire premises into a package store which would sell hard liquor in addition to beer and wine.Applying the Bridgewater v. Chuckran test,we held that"the sale of all-alcoholic beverages at the Belmont Street premises constitutes a new use and is in violation of the zoning ordinance."Jasper,supra at 24,242 N.E2d 540. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 9 555 N.E.2d 534 Page 10 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) Our holding in Jasper rested principally on the consideration that"the operation of a separately conducted all-alcoholic package store is substantially different from the sale of beer and wine in connection with a food store."Id at 24,242 N.E.2d 540.This change would nicely have resulted in a transformation in clientele,and a consequent change in impact on the surrounding neighborhood.Furthermore,as the Jasper case itself illustrates,the sale of beer and wine and the sale of hard liquor are treated separately for licensing purposes.This classification reflects a legislative determination that beer and wine are substantially different in character than more potent alcoholic beverages.These facts distinguishJasper from the instant case. We agree with the judge that Belcher's current use"is nearly identical in nature to that of Texaco:bulk deliveries by ocean-going vessels,bulk tank storage and wholesale distribution." In the absence of a demonstrated difference in neighborhood impact,a question we consider below,the fact that the product being delivered,stored,and distributed has changed from one petroleum product to another petroleum product does not mandate a conclusion that a change in the nature or purpose of the use has occurred.Compare Cape Resort Hotels,Inc.v.Alcohol Licensing Bd.of Falmouth, supra (change from residential hotel catering to elderly customers to entertainment complex catering to young, nonresident customers);Everpure Ice Mfg. Co.v. Board of Appeals of Lawrence,supra(change from ice business to fuel oil business);Tamerlane Realty Misty.Board ofAppeals ofProvincetown,supra(change from restaurant to hotel). The judge was warranted in finding that Belcher had satisfied the first prong of the Bridgewater v. Chucicran test. [10]*714 b.Quality, character,and degree of use.Chelsea argues that the character of the storage activities occurring on the property has changed due to the fact**541 that liquid asphalt must be kept heated.Chelsea contends that the heating process produces offensive vapors,and has required substantial physical alteration to the facility,including the erection of two smokestacks.Because the issue of vapors will be dealt with below in our discussion of neighborhood impact,at this juncture we deal solely with the issue of physical alteration. We held in Cape Resort Hotels,Inc.v Alcohol Licensing Bd of Falmouth,supra,that"a valid nonconforming use does not lose that status merely because it is improved and made more efficient,"provided,however,that the changes are "ordinarily and reasonably adapted to the original use and do not constitute a change in the original nature and purpose of the undertaking."Id 385 Mass. at 215,431 N.E.2d 213, quoting Berliner v. Feldman, 363 Mass. 767, 775,298 N.E.2d 153(1973).See Morin v.Board of Appeals of Leominster,supra 352 Mass.at 624,227 N.E.2d 466; Wayland v.Lee,supra 325 Mass.at 643,91 N.E.2d 835.Having concluded above that the original use of the property as a tank farm for petroleum products has not changed,we ask whether the modifications cited by Chelsea are"ordinarily and reasonably adapted"to that use.We conclude that they are.It is undisputed that liquid asphalt must be heated in order to prevent solidification,and that the modifications Belcher made to the facility were designed solely to accomplish that end.There is nothing to suggest that those changes were either extraordinary or unreasonable or that they changed the fundamental nature of the original enterprise.The judge was warranted in finding that Belcher had satisfied the second prong of the Bridgewater v. Chuckran test. [11] c. Neighborhood impact. The trial judge recognized that the third prong of the Bridgewater v. Chucicran test-pertaining to neighborhood impact-presented a close issue.In support of its contention that Belcher's liquid asphalt facility has a more deleterious impact on the surrounding neighborhood than Texaco's petroleum fuels facility had, Chelsea focuses*715 on the offensive smells and potential health risks associated with the Belcher facility. On the issue of neighborhood impact,the judge heard the following testimony. No residents,who live next to the facility,testified that the asphalt exudes terrible odors.However,under cross-examination both residents admitted that various other businesses in their largely industrial neighborhood had also emitted offensive odors for years prior to Belcher's acquisition of the property. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 10 555 N.E.2d 534 Page 11 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) Chelsea also presented testimony from two expert witnesses.A professional consulting engineer was retained to measure the emissions from Belcher's tanks at various sites around the neighborhood.The highest readings were taken at one owner's residence, where the expert recorded, over a twenty-four hour period, a total suspended particulate (TSP) concentration of 140 micrograms per cubic meter, and volatile organic compound (VOC) concentration of 320 micrograms per cubic meter r"'*. The expert conceded that the twenty-four hour TSP exposure limit set by the Department of Environmental Quality Engineering(DEQE)(now the Department of Environmental Protection)is 250 micrograms per cubic meter,and that he had not compared the Belcher emissions to those produced by Texaco when it operated the facility.Based on the emission levels recorded by this expert,a risk assessment expert estimated an increased risk of approximately three cancer cases per 1,000 people over a lifetime of continuous exposure.The latter expert offered no figure comparing this risk to that produced by Texaco's tenure. FN10.In very general terms,ISPs are visible particles while VOCs are invisible,gaseous emissions.Both are emitted from heated asphalt. Belcher offered three expert witnesses to rebut the defendants'experts,and to provide their own assessments ofthe health risks associated with asphalt emissions.The first,the chief chemist and environmental toxicologist of an environmental consulting firm,estimated the number of**542 increased cancers to be approximately six to seven per 1,000,000 people exposed continuously for seventy years to the levels of*716 asphalt emissions found by the defendants'consulting engineer.The second expert,a doctor of toxicology and comparative pharmacology, supplemented this testimony by concluding,based on a review of existing professional literature,that no scientific basis exists to conclude that asphalt emissions,in the levels present here,represent a public health hazard.Finally,a third expert,a senior technical specialist in an environmental consulting firm,testified as to the contents of a DEQE report detailing the results of emissions tests conducted at the facility while it was being operated by Texaco,and compared those results to the Belcher emissions recorded by one of Chelsea's experts.This expert concluded that the VOCs emitted by Texaco were approximately seven times greater than those emitted by Belcher n"'. FN11. Chelsea argues that the judge committed several errors in permitting the testimony of the experts presented by Belcher to testify. None of the arguments has merit, and they may be disposed of by brief discussion. a.The judge did not abuse the considerable discretion vested in her,see Kearns v.Ellis, 18 Mass.App.Ct. 923,924,465 N.E.2d 294(1984),in dealing with the delay in the disclosure of the experts offered by Belcher in rebuttal.See Mass.R.Civ.P.26(exl)(B),365 Mass.772(1974).Counsel for Chelsea knew the identity of these expert witnesses for almost two months,had ample time to prepare, and chose to do nothing. The testimony of the experts was vital to a fair analysis ofthe issues in the case.In view ofthat fact,and the length of time available to Chelsea's counsel to prepare,the judge acted reasonably in allowing the testimony.See Shaw v. Rodman Ford Truck Center,Ina, 19 Mass.App.Ct.709,713,477 N.E.2d 413(1985);Giannaros v.MS. Walker,Inc., 16 Mass.App.Ct.902,903,448 N.E.2d 1297(1983). b.The judge properly concluded that the third expert's testimony was properly based on facts about emission levels contained in a DEQE report which had arrived at the facts through a scientific testing process sanctioned by the United States Environmental Protection Agency.This is not a case where the expert relied on opinions and conclusions(as distinguished from facts)in someone else's report. C 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 11 555 N.E.2d 534 Page 12 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) c.The judge did not err in concluding that the second expert's testimony concerning the chemical composition of asphalt had a sufficient basis in the expert's personal knowledge,including his knowledge of the molecular structure of asphalt.See LaClair v.Silberline Mfg. Co.,379 Mass.21,32,393 N.E.2d 867(1979). The judge felt that the evidence on the comparative health risk of petroleum fuels and petroleum asphalt was ambiguous and inconclusive.Nonetheless,she concluded that Belcher*717 had satisfied the burden under the third prong of the Bridgewater v.Chuckran test by proving that:(1)its asphalt business operates only in warm weather,while the petroleum fuel business formerly run by Texaco operated year-round;and(2)Belcher uses only three of the storage tanks,while Texaco used all seven r'2.The judge also found that the current complaints regarding the odors emitted from the asphalt tanks might be due to the fact that the Belcher facility"is the current nemesis of the neighborhood while the Texaco problems have faded."We are satisfied that the judge's determination that Belcher's use is not"different in kind in its effect on the neighborhood"than was Texaco's prior use has support in the evidence.Over-all,the case is one which is very dependent on its facts,the unusual nature of the Texaco and Belcher operations, the existing uses in a heavily industrialized waterfront zone,and the visual observations made by the judge.These considerations combine to make the judges analysis of the situation a plausible one which necessarily ought to be sustained on appeal. • FN12.Chelsea's contention that these comparisons are biased-because the figures for Texaco were taken during the period of that company's peak operations-is neither supported by the evidence nor legally relevant. Judgment affirmed. • 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 12 Westlaw. 186 N.E.2d 471 Page 1 345 Mass. 158, 186 N.E.2d 471 (Cite as:345 Mass. 158, 186 N.E.2d 471) • C Supreme Judicial Court of Massachusetts,Hampshire. Anthony FERRANTE et al. v. BOARD OF APPEALS OF NORTHAMPTON et al. Argued Nov.7, 1962. Decided Nov.30, 1962. Bill in equity by way of appeal from a decision of zoning board of appeals refusing to grant a variance.From an order of the Superior Court,R.Sullivan,J.,directing the board to grant a variance,the board and an intervener appealed.The Supreme Judicial Court,Spalding,J.,held that decree granting a variance for commercial use of land in an area zoned for residential purposes was defective when court failed to find specifically that conditions existed especially affecting such parcel. Decree reversed. West Headnotes [1]Zoning and Planning 4140='531 414 Zoning and Planning 4141X Variances or Exceptions 4141X(8)Proceedings and Determination 414k531 k.In General.Most Cited Cases All requirements of statutes concerning granting of zoning variance must be met before a variance may be granted. M.G.L.A.c.40A§ 15. 121 Zoning and Planning 414 X723 414 Zoning and Planning 414X Judicial Review or Relief 414X(D)Determination 414k723 k.Findings.Most Cited Cases Decree granting variance for commercial use of land in area zoned for residential purposes was defective when court failed to find specifically that conditions existed especially affecting such parcel.M.G.L.A.c.40A§ 15. [3]Appeal and Error 30 '576 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 30 Appeal and Error 30X Record 30X(D)Contents,Making,and Settlement of Case or Statement of Facts 30k576 k.Report by Trial Judge of Facts Found.Most Cited Cases When a case comes to the Supreme Judicial Court on a statutory report of material facts without the evidence,the report must contain every fact necessary to support the decree. [4]Zoning and Planning 414 X489 414 Zoning and Planning 4141X Variances or Exceptions 4141X(A)In General 414k489 k.Grounds for Grant or Denial in General.Most Cited Cases The fact that property owner constructed a building on a lot in contravention of applicable zoning ordinance did not constitute a condition"especially affecting such parcel"within contemplation of statute providing for granting of a variance owing to conditions especially affecting such parcel.M.G.L.A.c.40A§ 15. [5]Zoning and Planning 414 C=321 414 Zoning and Planning 414W Nonconforming Uses 414k321 k.In General.Most Cited Cases A use which exceeds zoning limitations cannot be made a fulcrum to lift those limitations. [6]Zoning and Planning 414 X491 414 Zoning and Planning 414IX Variances or Exceptions 4141X(A)In General 414k491 k.Effect of Other Applications or Nonconforming Uses.Most Cited Cases Zoning and Planning 414 X498 414 Zoning and Planning 414DC Variances or Exceptions 4141X(A)In General 414k492 Hardship,Loss,or Injury 414k498 k. Single Owner's Profit or Disadvantage.Most Cited Cases Fact that there were other nonconforming buildings in the area and that property owner had expended a substantial amount of money in constructing a building not authorized by zoning ordinance on lot did not justify granting of zoning variance.M.GLA.c.40A§ 15. 0 2010 Thomson Reuters.No Claim to trig.US Gov.Works. 2 • [7]Zoning and Planning 414 X488 414 Zoning and Planning 4141X Variances or Exceptions 414IX(A)In General 414k488 k.Right to Variance or Exception,and Discretion.Most Cited Cases Zoning and Planning 414 X607 414 Zoning and Planning 414X Judicial Review or Relief 414X(C)Scope of Review 414X(C)1 In General 414k607 k.Variances or Exceptions,Decisions Relating To.Most Cited Cases No person has a legal right to a variance and only rarely with court order granting of a variance when zoning board of appeals has denied petition for a variance. [8]Zoning and Planning 414 X544 414 Zoning and Planning 414IX Variances or Exceptions 414IX(B)Proceedings and Determination 414k544 k.Findings and Reasons for Decision.Most Cited Cases Detailed fmdings are not required when zoning board of appeals has refused to grant a variance.M.CIL.A.c.40A,§15. [9]Zoning and Planning 414 X375.1 414 Zoning and Planning 414VIII Permits,Certificates and Approvals 414VIIl(A)In General 414k375 Right to Permission,and Discretion 414k375.1 k.In General.Most Cited Cases (Formerly 414k375) Zoning board of appeals has no discretion to deny a building permit on zoning grounds when an applicant has complied with all applicable zoning by-laws or ordinances. [10]Zoning and Planning 414 4 ::762 414 Zoning and Planning 414XI Enforcement of Regulations 414X1(A)In General 414k762 k Defenses to Enforcement.Most Cited Cases 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 Doctrine of estoppel does not prevent a municipality from enforcing its zoning laws. 1111 Estoppel 156 x762.5 • 156 Estoppel 15611I Equitable Estoppel 156111(A)Nature and Essentials in General I 56k62 Estoppel Against Public,Government,or Public Officers 156k62.5 k.Acts of Officers or Boards.Most Cited Cases (Formerly 156k62(5)) Fact that property owner had been granted a building permit by appropriate city official did not estop zoning board of appeal from denying a variance for commercial use of the property which was in an area zoned for residential purposes. M.GL.A.c.40A§ 15. *159**472 Edwin P.Dunphy,Northampton,for plaintiffs. John F.Murphy,Jr.,City Sol.,and Luke F.Ryan,Northampton,for Board of Appeals and intervener. Before*158 WILKINS,C.J.,and SPALDING,WHITTEMORE,CUTTER,KIRK and SPIEGEL,JJ. SPALDING,Justice. This is a bill in equity under CIL.c.40A,§21,inserted by St.1954,c.368,§2,by way of appeal from a decision of the board of appeals of Northampton refusing to grant to the plaintiffs a variance for a commercial use in an area zoned for residential purposes.Edward T.Pendergast,whose property abutted the plaintiffs',was permitted to intervene.The court ordered the board to grant a variance,and the board and the intervener appealed.The judge**473 made a report of material facts.The evidence is not reported. We summarize the findings of the judge as follows: The plaintiffs,husband and wife,are the owners of two virtually contiguous parcels of land in the village of Florence in Northampton. One,the Homestead lot,so called,fronts upon Meadow Street. The other parcel,which is called the Shop lot,is separated from the Homestead lot by Meadow Avenue, a private way. The Shop lot is located in a residence B district. Prior to 1952,the plaintiff Anthony Ferrante had conducted a cabinet making business on the Homestead lot. Expanding his business in 1952,he caused to be erected a concrete block building,twenty-five feet by forty feet,on the Shop lot. This building,which cost$12,000,was erected pursuant to a building permit issued by'the appropriate***[city]offrcial.''Since then he has continuously conducted his woodworking business from the Shop lot building.'He employs several persons in this business and carries it on'in the ordinary manner with regard to the nature of the business.'The judge,who took a view,found that the Shop lot was located in an area which'although zoned for residence can hardly be characterized as such.'The only land,other than the Shop and Homestead*160 lots,which fronts on Meadow Avenue,is a parcel owned by the intervener,Pendergast, and a parcel owned by one Bean.The intervener conducts a coal and ice business on his land,and Bean carries on an auctioneering business in a building which is in many respects 'similar to those inexpensive metal buildings called 'Quonset Huts?'No'other property is near enough to be in any way affected.'On the far side of the Bean property there is a'rather large cemetery.'The area in which the Shop lot is located is'but a short distance from a main street which is highly commercial.' 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 Under the heading,'Hardship,'the judge found that the building erected by the plaintiffs could not be converted into a building for residential use,and that the'denial of a variance would not only end the*•*[plaintiffs]business but would render this special purpose building incapable of occupancy and useless.' Under a heading entitled,'No substantial detriment to the public,'the judge found that the'only persons who would be affected by the granting of the variance for the continued operation of the • • • [plaintiffs] business would be the operator of the coal and ice business and the operator of the auctioneering business,' and the latter did not object. Under the caption,`No derogation from the intent of the zoning laws of the City of Northampton,'the judge found as follows: 'The subject property is located between two operating businesses and its general location* * *compels the conclusion that it could not reasonably be held to be appropriate for residential use.' After finding the foregoing facts,the judge ruled: 'Although the doctrine of estoppel was not squarely advanced by the •••[plaintiffs],the circumstances of the duly authorized•••[city]official having issued the building permit(and the building having been built and the business operating*•5)taken together with all of the facts as set out above compel the conclusion that the** *Board acted unreasonably and arbitrarily and thus in excess of its authority* * !' [1][2][3][4][5][6]*161 It is settled that,before a variance maybe granted,all the requirements of GL.c.40A,§15,must be met. Blackman v.Board of Appeals of Barnstable, 334 Mass.446,450, 136 N.E.2d 198;Atherton v. Board of Appeals of Bourne,334 Mass.451,454, 136 N.E.2d 201;Shacka v.Board of Appeals of Chelmsford,341 Mass.593, 595,171 N.E.2d 167;Sullivan v.Board of Appeals of Canton,Mass.,185 N.E.2d 756?'One of the provisions of§ 15 is that a variance may be granted only where, **474 'owing to conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located,a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship,financial or otherwise to the appellant'The judge failed to find specifically that the variance should be granted'owing to conditions especially affecting such parcel,'and the decree,therefore,is defective.Shacka v.Board of Appeals of Chelmsford,341 Mass.593, 171 N.E.2d 167;Barnhart v.Board ofAppeals of Scituate,Mass.,179 N.E.2d 251;" Coolidge v.Zoning Board of Appeals of Framingham,Mass., 180 N.E.2d 670.F"Since the case comes here on a statutory report of the material facts without the evidence,the report must`contain every fact necessary to support the decree,from the entry of which no fact not expressly found may be implied.'Carilli Construction Co.v.John Basile&Co.,Inc.,317 Mass.726,727,59 N.E.2d 706,707.The fact that the plaintiffs constructed a building in 1952 in contravention of the applicable zoning ordinance does not constitute a condition`especially affecting such parcel.'Colabufalo v.Public Buildings Com'r,of Newton,336 Mass.205,211, 143 N.E.2d 477.A use which exceeds zoning limitations'cannot be made a fulcrum to lift those limitations.' Cary v.Board of Appeals of Worcester,340 Mass.748,750,166 N.E.2d 690,692. Nor do the facts that there are other nonconforming buildings in the area and that the plaintiffs expended a substantial amount of money justify the granting of a variance. Bickpell Realty Co.v.Board of Appeal of Boston,330 Mass.676,680,116 N.E.2d 570. Bruzzese v.Board of Appeals of Hingham,Mass., 179 N.E.2d 269.x" FN1.Mass.Adv.Sh.(1962) 1409. FN2.Mass.Adv.Sh.(1962)37,39. FN3.Mass.Adv.Sh.(1962)367,369-370. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 FN4.MassAdv.Sh.(1962)1,3. [7][8]Rarely can a court order the granting of a variance when the board has denied the petition.No person has a legal *162 right to a variance.'If a case should come to us in which an owner had been denied a variance solely upon a legally untenable ground and the board should indicate that except for that ground the variance would have been granted, perhaps the court could give relief.'Pendergast v.Board of Appeals ofBamstable,331 Mass.555,559,120 N.E.2d 916, 919.The board's decision suggests no such untenable ground.Nor does it appear to have been reached by whim or caprice.See Pendergast v.Board of Appeals of Barnstable,supra,page 560, 120 N.E.2d 916.The plaintiffs argue that the board failed to state any ground for its decision other than that the variance is not one which'the Board has authority to grant.' But this court has Med that detailed findings are not required when the board refuses to grant a variance. Cefalo v.Board of Appeal of Boston,332 Mass. 178, 181, 124 N.E.2d 247.Conceivably a decision of a board might be held to be arbitrary when all the facts presented compelled a fmding that each requirement of§ 15 had been satisfied, ' and the board failed to make any findings to support its exercise of discretion in denying the variance.Such a case is not before us. [9]Cases cited by the plaintiffs where the court has ordered the board to grant a building permit are inapposite.The board has no discretion to deny a building permit on zoning grounds when an applicant has complied with all the applicable zoning by-laws or ordinances.These cases usually arise when the board has misinterpreted the the relevant by-law or ordinance.See D'Ambra v.Zoning Board of Appeal of Attleboro,324 Mass.61,84 N.E.2d 456. [10][11]The trial judge seems to have rested his decision to some extent on estoppel by reason of the fact that the plaintiffs had been granted a building permit by the'appropriate'**[city]official.'This court has held that the doctrine of estoppel**475 cannot stay the hand of a municipality in enforcing its zoning laws.Cochran v.Roemer,287 Mass. 500, 510, 192 N.E. 58; Building Commissioner of Medford v. C. & II. Co., 319 Mass. 273, 283, 65 N.E.2d 537; Manchester v.Phillips,Mass., 180 N.E.2d 333.' And this is the prevailing view elsewhere.See Ratbkopf,The Law of Zoning and Planning,c.67,and cases collected in*163 119 A.L.R. 1509 et seq.The reasons for the inapplicability of estoppel in cases of this sort have been well stated by the Supreme Court of New Jersey in Zahodiakin Engineering Corp.v. Zoning Board of Adjustment, 8 N.J.386,at page 396, 86 A.2d 127, 132,where it was said, 'The want of fundamental power cannot be indirectly supplied by the application of the doctrine of estoppel in pais.The elements of estoppel are wanting.The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest in zoning that cannot thus be set at naught.The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril.'This language is pertinent to the case at hand. It follows that the issuance of a building permit and the erection of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a variance by reason of estoppel. FNS.MassAdv.Sh.(1962) 197,203. The final decree is reversed and a decree is to be entered stating that the decision of the board did not exceed its authority,that no modification of its decision is required,and that the clerk of the court within thirty days after the entry of the decree send an attested copy thereof to the board. So ordered. • 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 Westl.avu 676 N.E.2d 838 Page 1 424 Mass.404,676 N.E.2d 838 (Cite as:424 Mass.404,676 N.E.2d 838) Supreme Judicial Court of Massachusetts, Suffolk. KA-HUR ENTERPRISES,INC. v. ZONING BOARD OF APPEALS OF PROVINCETOWN. Argued Feb.3, 1997. • Decided March 10, 1997. Property owner appealed town zoning board's denial of applications for building permit and special permits for use of property as fuel oil storage and distribution depot.The Land Court Department,Suffolk County,Robert V.Cauchon, J.,entered judgment upholding board's denial.Owner appealed.The Appeals Court,40 Mass.App.Ct.71,661 N.E.2d 120,Porada,J.,affirmed.Granting application for further appellate review,the Supreme Judicial Court,Fried,J.,held that:(1)under town zoning bylaw,simple cessation of existing,nonconforming use for two years or more resulted in extinguishment of nonconforming use,and(2)evidence supported land court's conclusion that nonconforming use of property as fuel oil storage and distribution depot had been discontinued for two years or more during prior ownership, so as to extinguish nonconforming use under town zoning bylaw. Judgment affirmed. West Headnotes [1]Zoning and Planning 414 C=337 414 Zoning and Planning 414V1 Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Term"discontinued" was not legal equivalent of"abandonment" under town zoning by-law section providing that nonconforming use that had been abandoned,or discontinued for two years,would not be reestablished;thus,simple cessation of existing,nonconforming use for two years or more would result in extinguishment of nonconforming use. M.G.L.A.c.40A,§6;Provincetown,Mass.,Zoning by-law art.II,§2130. [2]Zoning and Planning 414 x336.1 414 Zoning and Planning. 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases Abandonment is one of two ways under statute in which nonconforming use can be extinguished.M.G.L.A.c.40A,§ 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 6. [3]Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Evidence supported land court's conclusion that nonconforming use ofproperty as fuel oil storage and distribution depot had been discontinued for two years or more during prior ownership,so as to extinguish nonconforming use under town zoning bylaw;evidence indicated that property was used during prior ownership primarily for fishing and truck repair business and that use ofproperty for fuel oil storage and distribution was ancillary to those businesses.M.GL.A.c.40A, §6;Provincetown,Mass.,Zoning by-law art.II,§2130. [4]Zoning and Planning 4141C=127 414 Zoning and Planning 414VI Nonconforming Uses 414k327 k.Continuance or Change of Use in General.Most Cited Cases Three-part test for determining whether current use of property has caused property to lose its protection as preexisting nonconforming use asks whether current use reflects nature and purpose of use prevailing when zoning bylaw took effect, whether there is difference in quality or character,as well as degree,of use,and whether current use is different in kind in its effect on neighborhood. [5]Zoning and Planning 414 0327 414 Zoning and Planning 414VI Nonconforming Uses 414k327 k.Continuance or Change of Use in General.Most Cited Cases Landowner challenging extinguishment of nonconforming use has burden of proving requisite similarity in use to show there was no change in property's employment. **839*404 Jeanne S.McKnight(Elizabeth A.Lane,with her),Boston,for defendant. Christopher J.Snow,Provincetown,for plaintiff submitted a brief. Before WILKINS,C.J.,and LYNCH,O'CONNOR,FRIED and MARSHALL,JJ. • FRIED,Justice. The Appeals Court affirmed a judgment by the Land Court upholding a denial of the plaintiffs application for a building permit and special permits.40 Mass.App.Ct.71,661 N.E.2d 120(1996).We granted the plaintiffs application for further appellate review.We also affL,u. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 The plaintiff is the owner of property in Provincetown.In 1951,when Provincetown enacted its first zoning by-law,this • property's primary use was a fuel storage and distribution facility by a company known as Holway Oil, which use continued through November 13, 1978,when a comprehensive revision of the by-law was adopted. Because of its location in a residential district,the property's use was permitted only as a prior nonconforming use.In 1979,the property was sold to•405 Nauset Trawling Co.(Nauset),which operated a fishing business and truck repair shop on the property until August, 1987.Nauset continued to store fuel oil in two 20,000-gallon tanks located on the property and used this oil for its fishing vessels,personal residences of the owner and his parents,and occasional sales to out-of-town fishing vessels. The plaintiffpurchased the property in August, 1987.In October,1992,due to a leaking valve,the plaintiff was ordered to drain the fuel oil it had continued to store in the two 20,000-gallon tanks.In January, 1993,the plaintiff applied for a building permit in order to make improvements to the property which would facilitate the installation of a new 25,000-gallon fuel oil tank and allow the removal of the old tanks from the property.This permit was denied by the building inspector on the ground that during Nauset's ownership of the property, this nonconforming use had been abandoned or discontinued pursuant to art.II,§2130,of the by-law.The plaintiff appealed front this denial to the zoning board with a request for special permits which would allow changes to*1840 preexisting nonconforming uses.The denial was upheld and the special permits were also denied.On appeal to the Land Court,the judge found that Nauset's use of the property for fuel oil storage and distribution was ancillary to its fishing and truck repair business.Because he found the property's primary purpose had not been fuel oil and distribution for over two years,the judge held that the property had lost its protected status as a prior nonconforming use pursuant to art.II,§2130,of the by-law and GL.c.40A,§ 6. The plaintiff presents the same claims it presented to the Appeals Court:(1)contrary to the Land Court's determination, the terms "discontinued" and "abandoned" as employed by the Provincetown zoning by-law, art. II, § 2130, are synonymous and(2)the judge erred in fmding that the property's proposed use was no longer a protected nonconforming use.Adopting the rationale of the Appeals Court's opinion,we affum the holding and address each issue only briefly. [1]Provincetown's zoning by-law was revised following the enactment of GL.c.40A,§6,in 1975,which stated that "[a]zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." Tracking this language, •406 art. H, § 2130, of Provincetown's by-law reads, "A nonconforming use which has been abandoned,or discontinued for a period of two years,shall not be re-established...." The Appeals Court noted: "[p]rior to the passage of the Zoning Act in 1975,the word 'discontinued' in zoning ordinances and by-laws was interpreted to be the legal equivalent of'abandoned.'Pioneer Insulation&ModernizingCorp.v.Lynn,331 Mass.560, 565 [120 N.E.2d 913](1954).In Bartlett v Board of Appeals of Lakeville, 23 MassApp.Ct.664,669[505 N.E.2d 193](1987),however,we rejected the notion that the phrase'not used for a period of two years or more' in§6 was the legal equivalent of abandonment requiring a voluntary and intentional relinquishment of the use.In that case we concluded that a municipality now has two choices for terminating nonconforming uses,one being abandonment and the other a simple cessation of a nonconforming use for a period of at least two years." Ka-Nur Enters.,Inc.v.Zoning Board of Appeals ofProvincetown,40 Mass.App.Ct.71,73,661 N.E.2d 120(1996).We find this reading to be more consistent with the language of the by-law's enabling statute,see Bartlett v.Board ofAppeals of Lakeville,supra at 669,505 N.E.2d 193(otherwise the Legislature enacted a mere tautology"authorizing cities and towns to regulate nonconforming uses which have been'abandoned or abandoned for a period of two years or more'"), and comports with the legislative history of GL. c.40A, §6,as reviewed by the Appeals Court,id at 666-670,505 N.E.2d 193;Ka-Hur Enters.,Inc.it Zoning Board of Appeals of Provincetown,supra at 73-74,661 N.E.2d 120. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 [2]We acknowledge the fact that on two occasions since the enactment of G.L.c.40A,§6,this court has issued opinions relying on cases that equate the term"discontinue"with"abandon."See Derby Ref Co.v.Chelsea,407 Mass.703,555 N.E.2d 534(1990);Cape Resort Hotels,Inc.v.Alcoholic Licensing Bd of Falmouth, 385 Mass.205,431 N.E.2d 213 (1982).Neither case,however,squarely presented us with the occasion to rule on the issue now before us.As the Appeals Court noted in Bartlett,supra at 668 n.7,505 N.E.2d 193(1987),we were not asked to consider this question in the case of Cape Resort,which involved a pre-Zoning Act by-law and in which we looked at the effect of a conveyance,holding that"a sale of property protected as a nonconforming*407 use does not by itself establish an abandonment of the use." Cape Resort Hotels, Inc. v.Alcoholic Licensing Bd of Falmouth, supra at 221,431 N.E.2d 213.In Derby Refining, supra at 708,555 N.E.2d 534,we considered the use of the property at issue as a petroleum storage facility after the prior owner had"mothballed"NI the facility for**841 three years before it was purchased by the plaintiff.In that case,we stated that"the right to continue a nonconforming use...can be lost if a predecessor in title has abandoned the use."In DerbyRefining like Cape Resort,neither defendant argued that a prior valid nonconforming use had been extinguished by nonuse for a period of two years or more. Instead, each defendant argued that the plaintiff had abandoned the nonconforming use.Thus,our statement in Derby Refining should not be read to require an abandonment in order to extinguish a nonconforming use,but rather as a reaffirmation that abandonment is simply one of the two ways in which a nonconforming use can be extinguished. FNI.The prior owner had pumped out the storage tanks,hired a contractor to clean them,purged the feeding lines,filled them with a chemical preservative,and sealed them.The business office was also closed,although the prior owner continued to heat the building, hired a security firm to check the property,maintained its "flammable storage licenses,"and installed a"cathodic protection system"to preserve the steel of the empty tanks for the next owner and preserve the value of the property for sale to a party engaged in similar business. Derby Ref. Co.v. Chelsea,407 Mass.703,705,555 N.E.2d 534(1990). • [3][4][5]The Appeals Court reviewed the evidence and found that the property was primarily used to conduct a fishing business and store and repair trucks during the period ofNauset's ownership.As such,there was a"change or substantial extension" of the prior nonconforming use na which caused the property to lose its protection as a preexisting nonconforming use.Ka-Hur Enters., Ina v. Zoning Board of Appeals ofProvincetown,supra at 74,661 N.E.2d 120. The Appeals Court found the evidence sufficient to support the judge's conclusion regarding this loss of*408 protected status,id,as do we.It is the plaintiffs burden to prove the`requisite similarity"in use to show there was no change in the property's employment and the judge was warranted in finding this burden unmet. FN2.The judge applied the three-part test we announced in Bridgewater v.Chuckran, 351 Mass.20,23,217 N.E.2d 726(1966)to determine whether there had been a"change or substantial extension."The three tests ask "(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.'"Id Ka-Hur Enters.,Inc.v.Zoning Board of Appeals ofProvincetown,40 Mass.App.Ct.71,74 n.3,661 N.E.2d 120(1996). Judgment affirmed 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 C Appeals Court of Massachusetts, Barnstable. BUILDING INSPECTOR OF CHATHAM v. Marion L.KENDRICK et al?4' FII.Douglas A.Kendrick. Argued Sept. 12, 1983. Decided Dec. 1, 1983. Town building inspector commenced action to enjoin property owners from conducting business for the repair of heavy equipment and related machinery. The Superior Court, Barnstable County, entered judgment in favor of building inspector,and an appeal was taken.The Appeals Court held that minutes of hearings held by town's zoning board of , appeal on property owners'prior applications for special permits were inadmissible as substantive evidence of statements that property owner or his attorney made before the board. Reversed. West Headnotes [1]Zoning and Planning 414€='786 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(B)Injunction Against Violation 414k786 k.Evidence in General.Most Cited Cases In action brought by town building inspector to enjoin property owners from conducting a business for repair of heavy equipment,property owners bore burden of proving defense that nonconforming use existed. [2]Evidence 157 X318(1) 157 Evidence 157DC Hearsay 157k315 Statements by Persons Other Than Parties or Witnesses 157k318 Writings 157k318(1)k.In General.Most Cited Cases In action commenced by town building inspector to enjoin property owners from conducting business for repair ofheavy equipment and related machinery,minutes of hearings held by town's zoning board of appeal on property owners'prior 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 applications for special permits were inadmissible as substantive evidence of statements that property owner or his attorney made before the board. **1151.932 Russell N.Wilkins,Hyannis,for defendants. Frank J.Shealey,Town Counsel,Chatham,for plaintiff. Before GRANT,CUTTER and WARNER,JL *928 RESCRIPT. This action,commenced in the Superior Court on June 11,1980,by the building inspector of Chatham,seeks to enjoin the Kendricks from conducting a"garage...**1152 for the repair...of heavy equipment and related machinery"on Mrs. Kendrick's property situated(under the town zoning by-law)in a general business zone.A special permit is required ordinarily for such a use.After trial,Kendrick's operation was enjoined except as it came within the terms of a 1974 special permit issued to the Kendricks by the town's zoning board of appeal(the board).That permit specified that an addition to an existing building would be"used as a blacksmith shop...making ornamental iron work,...light decorative iron accessories,and the like,"and that repairs"to heavy equipment or machinery would not be carried on as any major portion of the proposed business use:' In August, 1978,the building inspector wrote to Kendrick,referring to"complaints concerning the heavy equipment parked...on the property"and ordered that he cease work on such equipment other than as allowed*929 in the 1974 permit.He was asked to"appeal for the expansion of a nonconforming use."In October,1978,Kendrick did apply for a special permit for"use of the premises as a garage ...for the repair...of trucks and related machinery."The board denied this application in December, 1978.There was no appeal from this decision. On January 30,March 20,and June 11,1980,the building inspector directed the Kendricks to desist from further work in violation of the 1974 permit.In their answer to the complaint,the Kendricks asserted that the repairs done by Kendrick on construction equipment and commercial vehicles constituted"a nonconforming use established prior to the existence of zoning by-laws in...Chatham,"originally adopted by the town in 1954. [1]The trial judge heard this case in June, 1982,in part upon a stipulation of certain facts and in part upon conflicting evidence about Kendrick's past use of the premises. The burden is upon Kendrick to prove his defense that a nonconforming use existed.See Colabufalo v.Public Bldgs. Commr.ofNewton,332 Mass.748,751, 127 N.E.2d 564 (1955).It was not contended by Kendrick that he,at the time of trial(mid-1982),was not(1)making substantial repairs to commercial vehicles including bulldozers,graders,backhoes,and plows and(2)storing such vehicles on the premises until such repairs could be completed. The principal questions argued relate to the trial judge's admitting in evidence,over objection on behalf of Kendrick, the board's minutes of its meetings on January 9, 1974,and on November 29, 1978,as well as other documents then considered by the board.There was testimony at trial by Kendrick(and by witnesses called in his behalf)that Kendrick, although in regular employment for others prior to and immediately after 1954, did repair work on the premises on "nights,Sundays,holidays,[and]days off,"working thirty-five to sixty hours a week depending on the"volume of work and the type of jobs." 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 [2]In his findings,rulings,and order for judgment,the judge relied on the minutes of the hearings before the board as showing(a)that in 1978 Kendrick or his counsel had"indicated[to the board]that the repair business had commenced on a part-time basis in 1965...after the enactment of the zoning by-law,"and(b)that no claim was made at either hearing that the repair business was a pre-1954 nonconforming use,a contention which the judge clearly regarded as fust asserted by Kendrick in the present action.With respect to the testimony of Kendrick and other witnesses about his use of the locus,before and shortly after 1954,the judge stated merely that,on all the evidence,he could not"conclude that the Kendricks have sustained their burden of proving that the repair of equipment and machinery was an established use of the premises prior to... 1954."The judge did not state that he did not believe Kendrick and the witnesses called by him to show a pre-1954 nonconforming use.Instead,the judge referred to a statement in the minutes ofthe 1978 hearing, which was in*930 substance,"Kendrick has operated his shop,"on the basis ofmaking repairs to what he considers to be light machinery,"at this location at least on a part-time basis **1153 since 1964."The judge in effect used this somewhat ambiguous statement in the 1978 minutes as establishing the truth of what was reported and as the basis for his conclusion"that the repair business had commenced on a part-time basis in 1965."It is not clear from the minutes to whom the statement was attributed by the author of the minutes,although it was probably attributed to Kendrick's then attorney,Mr.Hammatt.Although present in court,Mr.Hammatt was not called as a witness to state what his contentions had been in 1978.There was improper and excessive use of the minutes of the 1978 hearing which requires reversal.The judge's use of the minutes was excessive in that he used them as substantive evidence that Kendrick or his attorney made before the board the statements attributed to one or the other of them. General Laws c.40A, § 15,inserted by St.1975,c.808,§3,provides that the"board shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question... and setting forth clearly the... reasons for its decision and of its official actions,copies of all of which"are to be filed with the"town clerk and shall be a public record."See also the open meeting law(G.L.c.39,§23B,inserted by St.1975,c.303,§3),reading in part (then and now despite various amendments),"A governmental body shall maintain accurate records of its meeting,setting forth the date,time,place,members present or absent and action taken at each meeting,including executive sessions. The records of each meeting shall become a public record and be available to the public,"subject to a proviso not here relevant.General Laws c.66, § 5A,as amended by St.1982,c. 83,most recently provided that the public records of meetings there mentioned"need not include a verbatim record of discussions at such meetings." The public records exception to the hearsay rule has been discussed in the Massachusetts decisions collected in Liacos, Handbook of Massachusetts Evidence,266,340-346(5th ed. 1981&Supp.1983),and Hughes,Evidence, §§611-612 (1961 and Supp.1981).See also 5 Wigmore,Evidence,§§ 1631-1632(Chadbourn Rev.I974);McCormick,Evidence, §§315-317,319-320(2d ed. 1972 and Supp.1978).We need not determine whether there has been some expansion of this common law exception in recent years.See Selectmen of Stockbridge v.Monument Inn,Inc., 14 MassApp.Ct.957, 438 N.E.2d 365(1982);Proposed Massachusetts Rules of Evidence, 104 and 803(8),as published in July, 1980. See also the extent to which administrative documents were considered in Shuman v.Aldermen of Newton, 361 Mass.758, 767-768,282 N.E.2d 653(1972).Compare Amory v.Commonwealth,321 Mass.240,252-253,72 N.E.2d 549(1947), Kelly v.O'Neil, 1 Mass.App.Ct.313,319,296 N.E.2d 223(1973).Proposed Rule 803(8),if it had been adopted,would have made admissible a wide range of public records*931"unless the sources of information or other circumstances indicate lack of trustworthiness." We think that the statutes just cited make public records,such as those required to be kept by the board,admissible to prove the specific matters which the statutes require expressly to be recorded,e.g.,the date of each meeting,the motions made,the vote upon each motion,the board members present and absent, and the reasons formally stated for each decision.Even findings by a zoning board,however,have no evidentiary weight.See Devine v.Zoning Bd. of Appeals of Lynn,332 Mass.319,321, 125 N.E.2d 131 (1955);Dion v.Board ofAppeals of Waltham,344 Mass.547,555, 183 N.E.2d 479(1962).See also Lawrence v.Board of Appeals of Lynn,336 Mass.87,89, 142 N.E.2d 378(1957).We do not decide whether such minutes may be used for some other purposes when supplemented by the testimony of persons present at the meetings recorded,or ofthe person who prepared the minutes,particularly if the minutes are shown to have been complete and prepared on the basis of a verbatim transcript or tape recording.'We do not suggest that**1154 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 the Kendricks'1974 and 1978 applications to the board may not be evidence of the fact that there was an application for relief,unnecessary if the Kendricks had the benefit of a nonconforming use,without alleging the existence of that use. Kendrick's own testimony about the 1978 hearing was too ambiguous to amount to an admission that the minutes were accurate. FN2.The trial judge seems to have required no adequate inquiry from any member or employee of the board. (as opposed to the town clerk as custodian of the board's records who had no knowledge of their accuracy) concerning the trustworthiness of the minutes. Without adequate support in the evidence, the building inspector's brief inappropriately asserts that the minutes were prepared with the assistance of a tape recording of the proceedings at each meeting. We think that the minutes of the 1974 and 1978 meetings of the board are not admissible under G.L.c.233,§78,upon the facts reflected in this record,to prove the truth of the evidence before the board recorded in the minutes.See the discussion in Wingate v.Emery Air Freight,385 Mass.402,405-407,408-410,432 N.E.2d 474(1982),and cases cited. Upon a new trial,if evidence concerning a nonconforming use is presented,the trial judge should make explicit findings concerning whether such a pre-1954 use existed.It will be open on a new trial for the judge to consider(a)whether there has been excessive expansion of any nonconforming use since 1954(see the discussion in Powers v.Building Inspector of Barnstable, 363 Mass. 648, 652-653,296 N.E.2d 491 [1973], and Gamache v. Acushnet, 14 Mass.App.Ct.215, 221-222,438 N.E.2d 82[1982]);and(b)whether and to what extent the Kendricks'failure to raise before the board in 1974 and 1978 the issue of nonconforming use,which they could then have raised,may be binding upon them in a de novo judicial review of the board's action in the present case.See Restatement(Second)of Judgments,§83(1982). Judgment reversed. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 C Supreme Judicial Court of Massachusetts,Norfolk. Nyman H.KOLODNY et al. v. BOARD OF APPEALS OF BROOKLINE et al. Ms The other defendants are the building commissioner,William C.Berghaus,a building inspector,and,by intervention,James Lawrence,Jr.See the Bloom case,Mass., 191 N.E.2d 684. Argued May 9, 1963. Decided July 1, 1963. Proceeding to review decision of town zoning board of appeals that it was without jurisdiction to hear an appeal from town building commissioner's denial of request that building permits for construction of apartment buildings be revoked as violative of zoning bylaws.In the Superior Court demurrers were sustained by Tauro,J.,motion to amend was denied by Fairhurst,J.,and final decrees were entered by Sullivan,J.,and the plaintiffs appealed.The Supreme Judicial Court, Whittemore, J., held that the commissioner's decision was not an appealable decision notwithstanding additional allegations that the permits had been approved without authority in law. Interlocutory and final decrees affirmed. West Headnotes Zoning and Planning 414 X570 414 Zoning and Planning 414X Judicial Review or Relief 414X(A)In General 414k570 k Decisions Reviewable.Most Cited Cases Town building commissioner's written decision,in response to request to revoke building permits previously issued,that the proposed apartment house complex for which the permits had been granted met the town building and zoning requirements was not an appealable"decision"notwithstanding additional allegations that permits had been approved without authority in law.M.CIL.A.c.40A§§ 13,21. *286**690 Jack H.Backman,Boston,for plaintiffs. Lewis H.Weinstein,Boston(Lawrence A.Sullivan,Boston,with him),for Lawrence. Phillip Cowin,Town Counsel,for Board of Appeals of Brookline and others. Before*285 WILKINS,C.J.,and WHITTEMORE,CUTTER,SPIEGEL,and REARDON,JJ. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 WHITTEMORE,Justice. This appeal under GL.c.40A, §21,seeks review of the decision of the board of appeals that it had no jurisdiction of an appeal by aggrieved residents of the town of Brookline from the denial by the building commissioner oftheirrequest that he revoke the thirteen building permits referred to in Bloom v.Planning Bd.of Brookline,Mass.,191 N.E.2d 684, as violative of the zoning by-law. The bill alleged that the permits were'approved'by the building inspector on March 27, 1962;the plaintiffs on April 10, 1962,requested in writing that the permits be revoked as granted unlawfully and in error,on April 26, 1962,the building commissioner,in writing,denied the request to revoke and the plaintiffs appealed to the board within ten days; the board denied the appeal,making findings and rulings.The request to revoke,the commissioner's response,and the board's decision are incorporated in the bill. Demurrers were sustained,and a motion to amend the bill was denied as was leave further to amend.The final decrees dismissed the bill.There was no error. In Atherton v. Selectmen of Bourne,337 Mass.250,258-259, 149 N.E.2d 232,we held that the building inspector's withdrawal of a'stop work order'by physically removing the order from the premises or orally informing the landowner that it was not in effect was not an'order or decision'from which an aggrieved neighbor could appeal under G.L.c.40A, § 13.r"'*287 Dodge v.Inspector of Bldgs.of Newburyport,340 Mass.382,385-386, 164 N.E2d 309,holds that the failure to appeal from the issuance ofa permit to build did not bar mandamus to require the inspector of buildings to stop the use ofthe building contrary to the zoning by-law;the issuance of the permit was not an'order or decision'from which to appeal as it did not show that a violation was in prospect and in any case the proceeding was one to compel enforcement of the zoning ordinance. See Van Arsdale v. Provincetown, 344 Mass. 146, 151, 181 N.E2d 597. In Williams v. Inspector of Bldgs.of Belmont,341 Mass. 188, 189-190, 168 N.E.2d 257,the petitioners requested the inspector to stop the work which was going forward without a permit.We held that as no writing existed to establish the content of any order or decision,mandamus was not barred.Accord,Hinves v.Commissioner of Pub.Works of Fall River,342**691 Mass.54,56-57,172 N.E.2d 232.In the Williams case,we said:'It may be thought somewhat arbitrary that questions of enforcement which will come before the local board of appeals if a permit is granted or denied will not reach the board if no permit is sought and the enforcing officer does not act.This,however,is not a necessary state of affairs.A provision in a by-law or ordinance for the filing of a request for enforcement and for formal action on the request could,it would seem,operate to cause an appealable decision.' FN 1.This section,as appearing in St 1955,c.325,§1,provides:'An appeal to the board of appeals established under section fourteen may be taken by any person aggrieved by reason of his inability to obtain a permit from any administrative official under the provisions of this chapter,or by any officer or board of the city or town, or by any person aggrieved by any order or decision ofthe inspector of buildings or other administrative official in violation of any provision ofthis chapter,or any ordinance or by-law adopted thereunder.A zoning ordinance or by-law may prescribe a reasonable time within which appeals under this section may be taken.' Here the building commissioner decided the matter submitted to him by the request to revoke permits,and his writing is sufficient to show the substance of his decision,that is,that the'proposal[for which permits had been granted]meets the requirements ofthe building Code and Zoning By-Law ofthe Town of Brookline.'But the defendants rightly contend that this was not a'decision'from which an appeal may be taken to the board of appeals*288 under GL.c.40A,§ 13, for it is no more than a reaffirmation of the decision of March 27,1962,to issue the permits.The plaintiffs may not thus, in effect,modify the statutory provisions in respect of the issuance of permits.Nothing in the Atherton or Williams cases suggests a right of appeal from such a reaffirming of the issuance of permits.A decision to revoke the permits would, ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 of course,be in different aspect.It is not alleged that the appeal was taken within the time limited by the zoning by-law after the original decision of March 27, 1962,to issue the permits,nor is it contended that this could be alleged in an amendment.The bill,by alleging that the appeal from the denial of the request to revoke was within ten days,appears to recognize that the appeal period is ten days and the decision of the board also so indicates. The allegation that the building permits were approved by the building inspector'without the authority in law'and the assertion in the incorporated request to the commissioner to revoke the permits that the permits [o]n their face"'were not in fact approved by the Building Commissioner,as required by the Brookline Building Code adopted March 22, 1956,§207,'add nothing to the bill.Bloom v.Planning Bd.of Brookline. As there was no lawful appeal to the board,its ruling that it had no'jurisdiction over the appeal'was required in law. The defect disclosed by the original bill,and equally by the proposed amended bill,is fatal and nothing suggests that it may be cured by amendment. Interlocutory decrees affirmed. Final decrees affirmed. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 Westlaw. 65 N.E.2d 537 Page 1 319 Mass.273,65 N.E.2d 537 (Cite as:319 Mass.273,65 N.E.2d 537) C Supreme Judicial Court of Massachusetts,Middlesex. BUILDING COM'R OF MEDFORD v. C.&H.CO. C.&H.CO. v BOARD OF HEALTH OF MEDFORD. March 6, 1946. Suit by the Building Commissioner of Medford against the C.&H.Company to enjoin defendant from using a certain parcel of land for the dumping of garbage,ashes,and other household refuse unless such use is approved by board of aldermen and authorized by board of health;and proceeding by the C.&H.Company against the Board of Health of Medford for a writ of certiorari to quash the action of the board of health revoking a permit to use a dump.From a decree in the first suit permanently enjoining the use of the dump without approval of board of aldermen and authorization by board of health and from a judgment dismissing the petition for writ of certiorari,the C.&H.Company appeals. Affirmed. West Headnotes ]1]Zoning and Planning 414 X38 414 Zoning and Planning 41411 Validity of Zoning Regulations 414II(A)In General 414k38 k.Hardship,Loss,or Benefit to Particular Persons.Most Cited Cases (Formerly 268k601,268k625) A landowner,even though he may be deprived by zoning ordinance of use of land that would be more profitable to him, has no just ground of complaint unless he shows that zoning ordinance as applied to him and his property is plainly arbitrary and unreasonable and has no rational relation to any of the purposes mentioned in statute authorizing zoning ordinance or to any of the purposes for which police power may be legitimately exercised.GL.(Ter.Ed.)c.40,§25,as amended by St.1933,c.269, § 1 (M.GL.A.);M.GL.A.Const.Amend.art.60. ]2]Evidence 157€=)7 157 Evidence 1571 Judicial Notice 157k7 k.Qualities and Properties of Matter.Most Cited Cases The nature of refuse from dwelling is a matter of common knowledge. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. I 65 N.E2d 537 Page 2 319 Mass.273,65 N.E.2d 537 [3]Zoning and Planning 414 X76 414 Zoning and Planning 414II Validity of Zoning Regulations 41411(B)Regulations as to Particular Matters 414k76 k.Particular Uses.Most Cited Cases (Formerly 268k625) Zoning ordinance forbidding use of land as a public or private dump of refuse collected from dwellings without permit from building commissioner with approval of board of aldermen is not unreasonable or arbitrary.GL.(TerEd.)c.40, §25,as amended by St.1933,c.269,§ 1 M.GL.A.c.40A§2;M.GL.A.Const.Amend.art.60. [4]Zoning and Planning 414 C '373.1 414 Zoning and Planning 414V1II Permits,Certificates and Approvals 414VIII(A)In General 414k373 Power to Grant 414k373.1 k.In General.Most Cited Cases (Formerly 414k373,268k621) City had right to safeguard public interest by requiring approval of board of aldermen before a permit should be issued for use of land as private or public dump.GL.(Ter.Ed.)c.40, §25,as amended by St.1933,c.269, § 1 (M.G.L.A.c. 40A§2);M.GL.A.Const.Amend.art.60. [5]Zoning and Planning 414 X86 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(8)Regulations as to Particular Matters 414k86 k.Permits and Certificates.Most Cited Cases (Formerly 268k621) Provision of zoning ordinance requiring approval of board of aldermen before a permit may be issued by building commissioner to use land for a private or public dump does not invade province of board of appeals or that of board of - health.GL.(Ter.Ed.)c.40, §25,as amended by St.1933,c.269, § 1 (M.GL.A.c.40A§2);M.GLA.Const.Amend. art.60. • [6]Municipal Corporations 268 X607 268 Municipal Corporations 268X Police Power and Regulations 268X(A)Delegation,Extent,and Exercise of Power 268k607 k.Removal and Disposition of Garbage,Refuse,and Filth.Most Cited Cases Power of city to regulate use of land for public or private dump of refuse collected from dwellings does not spring from constitutional amendment authorizing enactment of legislation permitting municipal corporations to enact zoning 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 65 N.E.2d 537 Page 3 , 319 Mass.273,65 N.E.2d 537 • ordinances,but is part of police power of commonwealth which has been conferred on city. GL.(Ter.Ed.)c.40, §25, as amended by St.1933,c.269, § 1;Const.Amend.art 60. [7]Municipal Corporations 268€='591 268 Municipal Corporations 268X Police Power and Regulations 268X(A)Delegation,Extent,and Exercise of Power 268k591 k.Delegation of Power by Municipality.Most Cited Cases Zoning and Planning 414 X42 • 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(A)In General 414k42 k.Standards Governing Conduct of Administrative Officials.Most Cited Cases Zoning ordinance forbidding use of land as public or private dump unless landowner secures permit from building commissioner and approval of board of aldermen adequately states principles for guiding the board and standards to be observed by the board. GL.(Ter.Ed.) c. 40, § 25, as amended by St.1933, c. 269, § I (M.G.L.A.); M.GL.A. Const.Amend.art.60. [8]Zoning and Planning 414 1373.1 414 Zoning and Planning 414VII1 Permits,Certificates and Approvals 414 VIIIA)In General 414k373 Power to Grant 414k373.1 k.In General.Most Cited Cases (Formerly 414k373,268k621) Where zoning ordinance prohibited use of land for public or private dump without permit from building commissioner approved by board of aldermen,subsequent ordinance granting board of health power to make regulations for control of all dumping of refuse and for control of all places used for dumping of refuse did not leave board of aldermen without power under zoning ordinance to approve permits. GL.(Ter.Ed.) c. 40, § 25, as amended by St.1933, c. 269, § 1 (M.GL.A.c.40A§2);M.GL.A.Const.Amend.art.60. [9]Appeal and Error 30 X1009(1) 30 Appeal and Error 30XVI Review 30XVI(I)Questions of Fact,Verdicts,and Findings 30XVI(I)3 Findings of Court 30k1009 Effect in Equitable Actions 30k1009(1)k.In General.Most Cited Cases In suit to enjoin use of land for dumping of refuse from dwellings without permit required by zoning ordinance,fording 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 65 N.E.2d 537 Page 4 319 Mass.273,65 N.E.2d 537 that casual and sporadic filling done prior to amendment of zoning ordinance to include dumps was not a prior existing nonconforming use,was not plainly wrong.G.L.(Ter.Ed.)c.40,§25,as amended by St.1933,c.269,§ 1;Const.Amend. art.60. [10]Appeal and Error 30 X1009(1) 30 Appeal and Error 30XVI Review 30XVI(I)Questions of Fact,Verdicts,and Findings 30XVI(I)3 Findings of Court 30k1009 Effect in Equitable Actions 30k1009(1)k In General.Most Cited Cases In equity suit,where entire evidence is reported,decision based upon oral testimony will not be overturned unless plainly wrong. [11]Injunction 212 X109 212 Injunction 2121II Actions for Injunctions 212k109 k Defenses.Most Cited Cases Zoning and Planning 414 E779.1 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(B)Injunction Against Violation 414k779 Defenses 414k779.1 k In General.Most Cited Cases (Formerly 414k779) The fact that city was dumping refuse on defendant's land without any permit did not bar city or its building commissioner from obtaining decree enjoining defendant from using land for dumping of refuse from dwellings without permit required by zoning ordinance.G.L.(Ter.Ed.)c.40,§25,as amended by St.1933,c.269,§ 1 (M.GL.A.c.40A §2);M.G.L.A.Const.Amend.art.60. [12]Zoning and Planning 414 X762 414 Zoning and Planning 414X1 Enforcement of Regulations 414X1(A)In General 414k762 k.Defenses to Enforcement.Most Cited Cases (Formerly 268k621) The fact that some one else is violating provision of zoning ordinance regarding dumps furnishes no excuse or justification for a violation by defendant. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 65 N.E.2d 537 Page 5 319 Mass.273,65 N.E.2d 537 [13]Estoppel 156€='62.4 156 Estoppel 156111 Equitable Estoppel 156111(A)Nature and Essentials in General I 56k62 Estoppel Against Public,Government,or Public Officers 1561(62.4 k.Municipal Corporations in General.Most Cited Cases (Formerly 156k62(4)) Estoppel 156€`'62.5 156 Estoppel 156I1I Equitable Estoppel 156I1I(A)Nature and Essentials in General 156k62 Estoppel Against Public,Government,or Public Officers 156k62.5 k.Acts of Officers or Boards.Most Cited Cases (Formerly 156k62(5)) Where bill was brought to enforce zoning ordinance provision regarding dumps for public welfare,building inspector who was charged with enforcement of ordinance was not estopped by alleged action of city or its officials in using dump. M.G.LA.c.40,§25,as amended by St. 1933,c.269,§ 1;Const.Amend.art.60. [14]Municipal Corporations 268€ 192 268 Municipal Corporations 268V Officers,Agents,and Employees 268V(B)Municipal Departments and Officers Thereof 268k192 k.Buildings.Most Cited Cases Building commissioner has no authority to enforce regulations of municipal board of health. [15]Injunction 212€ 114(2) 212 Injunction 212111 Actions for Injunctions 212k114 Parties 212k114(2)k.Complainants.Most Cited Cases Zoning and Planning 414€ 783 414 Zoning and Planning 414X1 Enforcement of Regulations 414X1(B)Injunction Against Violation 414k783 k.Parties.Most Cited Cases Bills for injunctions to enforce zoning ordinance are properly brought in name of the municipality. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 65 N.E.2d 537 Page 6 319 Mass.273,65 N.E.2d 537 [16]Environmental Law 149E X657 149E Environmental Law 149EXIII Judicial Review or Intervention 149Ek657 k.Parties.Most Cited Cases (Formerly 199k19 Health and Environment) Injunction 212 X114(4) 212 Injunction 212I1I Actions for Injunctions 2121(114 Parties 212k114(4)k.New Parties.Most Cited Cases Zoning and Planning 414 X783 414 Zoning and Planning 414XI Enforcement of Regulations 414X1(B)Injunction Against Violation 414k783 k.Parties.Most Cited Cases Where defendant was using its land for a dump without permit from building commissioner in violation of ordinance and without permit from board of health,but building commissioner was sole plaintiff in suit for injunction,an amendment could be allowed substituting the city as party plaintiff so that city could enforce the zoning ordinance and regulation of board of health.GL.(Ter.Ed.)c.231, § 125(M.GL.A.). [17]Injunction 212 e'204 212 Injunction 212VI Writ,Order,or Decree 212k202 Writ or Order 2121204 k.Form and Requisites.Most Cited Cases A final decree granting permanent injunction should be as definite as circumstances allow in order that defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of any ambiguity in the decree. [18]Health 198H e'356 198H Health 198111I Public Health 198111055 Constitutional,Statutory,and Regulatory Provisions 198Hk356 k.In General.Most Cited Cases C 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 65 N.E.2d 537 Page 7 319 Mass.273,65 N.E.2d 537 (Formerly 199k3I Health and Environment) In board of health regulation establishing a form for granting approval for use of land as a dump and permitting the depositing or dumping ofhouse dirt,rubbish and waste material,"rubbish"is synonymous with refuse and includes ashes produced in dwelling. [19]Health 198H X356 19811 Health 1981111 Public Health I98Hk355 Constitutional,Statutory,and Regulatory Provisions 198Hk356 k.In General.Most Cited Cases (Formerly 199k31 Health and Environment) Where board of health regulation, establishing form for granting approval for use of land as dump and permitting dumping of house dirt,rubbish and waste material,provided that no decomposing or offensive matter shall be dumped, the dumping of garbage was prohibited. [20]Zoning and Planning 414 X371 414 Zoning and Planning 414VIII Permits,Certificates and Approvals 414VI11(A)In General 414k371 k.Requirement in General.Most Cited Cases (Formerly 268k621) Where zoning ordinance required permit from building commissioner with approval ofboard of aldermen for use ofland as a dump and board of health had authority to regulate dumping of refuse,a permit from board of health would not authorize landowner to maintain dump in violation of zoning ordinance without permit from building commissioner. C1L.(Ter.Ed.)c.40, §25,as amended by St.1933,c.269,§ 1 (M.QL.A.);M.QL.A.Const.Amend.art.60. [21]Health 198H x'366 19811 Health 1981111 Public Health I98Hk36I State and Local Boards,Districts,and Employees 198Hk366 k.Authority in General.Most Cited Cases (Formerly 199131 Health and Environment) Zoning and Planning 414 X278.1 414 Zoning and Planning 414V Construction,Operation and Effect 414V(C)Uses and Use Districts 414V(C)1 In General 414k278 Particular Terms and Uses 4141278.1 k.In General.Most Cited Cases 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 65 N.E.2d 537 Page 8 319 Mass.273,65 N.E.2d 537 (Formerly 4141.278,268k601) The authority of a board of health to assign certain places for the exercise of an offensive trade or employment must yield to provisions of statute and ordinances pertaining to zoning.GL.(Ter.Ed.)c.111,§143,as amended by St.1933,c.269, §2(M.G.L.A.). [22]Certiorari 73 '9 73 Certiorari 73I Nature and Grounds 73k9 k.Discretion as to Grant of Writ.Most Cited Cases The writ of certiorari is not a writ of right,but its issuance rests in the sound discretion of the court. [23]Certiorari 73 X27 73 Certiorari 73I Nature and Grounds 73k27 k.Grounds in General.Most Cited Cases Generally,where there is no showing of substantial injury or manifest injustice,writ of certiorari will not issue. [24]Health 198H 0380 19811 Health 1981111 Public Health 198Hk379 Judicial Review of Administrative Proceedings 19811k380 k.In General.Most Cited Cases (Formerly 199k31 Health and Environment) Where zoning ordinance required that permit be obtained from building commissioner for use of land as dump but board ofhealth had authority to control dumps,revocation ofpermit from board of health without notice or hearing was without substantial injury or manifest injustice to landowner who did not have permit from building commissioner,and petition for writ of certiorari to quash action of board of health revoking permit was properly dismissed.M.G.L.A.c.111,§ 143, as amended by St.1933,c.269, §2. **539 Appeals from*274 Superior Court,Middlesex County;Brogna,Judge. Before*273 HELD,C.J.,and LUMMUS,DOLAN,RONAN,and SPALDING,JJ.*276 A.C.York,City Sol.,and A. J.Kirwan,both of Medford,for Building Com'r and Board of Health of Medford. S.IL Wrightington,of Boston,for C.&H.Co. RONAN,Justice. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 8 65 N.E.2d 537 Page 9 319 Mass.273,65 N.E.2d 537 The defendant in the first case has appealed from a fmal decree permanently enjoining**540 it from using a certain parcel of land for the dumping of garbage,ashes or other household refuse unless such use is approved by the board of aldermen and authorized by the board of health,but allowing it to fill in its land in any manner which is permitted by the zoning ordinance and which will not,in the judgment of the board of health,make it a menace to health or property.The defendant in the first case as the*277 petitioner in the second case appealed from a judgment dismissing its petition for a writ of certiorari seeking to quash the action of the board of health revoking a permit to use as a dump the same premises mentioned in the bill in equity. The city of Medford adopted a zoning ordinance in 1925 dividing the city into six districts.The C.&H.Co.purchased between 1928 and 1935 a large area of marsh land between Riverside Avenue and Mystic Valley Parkway in said Medford.This land has since the enactment of the zoning ordinance been located in a heavy industrial district where the buildings and land by virtue of section 9 of this ordinance may,subject to section 19,be used for any purpose except for dwellings or for thirty-nine specific industries lice abattoirs,stockyards,rendering works,glue factories,tanneries and for use injurious to the safety and welfare of the neighborhood'because of any excessive nuisance qualities.'No permit for the use of land in this district for a junk yard,sand or gravel pit and for various other uses can be issued by the building commissioner until the application is approved by the board of aldermen.Section 19.This last section of the ordinance was amended on January 24,1935,so as to include'dumps,private or public,'among the uses for which the approval of the board of aldermen is required.A public hearing before the board of aldermen upon the application for a use of land for any of the purposes mentioned in section 19 is provided by section 20.The board may prescribe the conditions and terms upon which a permit is to be issued,which may be changed from time to time,and no permit is to be granted that would result in substantial injury. The board of health of Medford adopted a regulation prohibiting dumping without a permit from it,and subsequently an ordinance was enacted on December 20,1938,giving to this board power to make rules and regulations for the control of all dumping of refuse and of all places used for the dumping of refuse,and requiring a permit from the board.The board on November 24, 1939,granted to the defendant in the first case,hereinafter called the defendant,a permit to dump on the parcel of land in question.The board of aldermen on February 6,1945,requested the board of health*278 to rescind this permit until the defendant had complied with the provisions of the zoning ordinance,which was in effect a request to revoke the permit because the defendant had not secured a permit from the building commissioner approved by the board of aldermen.The permit was revoked by the board of health of February 16, 1945,without any previous notice to the defendant and without a hearing solely on the ground that the defendant was using its land for a dump without having obtained this approval of the board of aldermen and without determining whether such use of the land constituted a nuisance or a menace to health or property.The board of aldermen has never approved the granting of any permit by the building commissioner for the use of the land as a dump;the commissioner has not issued any permit;and the defendant has never applied for any permit from him. The judge found that the defendant's premises are low,marshy land,not now adaptable for ordinary use,that they are fit for a dump,and that dumping will make them more rentable for general land purposes and will increase their value. He also found that the defendant is conducting dumping on its land as a business,and that it has entered into a contract with the city of Somerville to dump house refuse collections on the land.The use made of the defendant's premises prior to the filing of the bill is fully described by the testimony.Oral evidence and also photographs indicated that rubbish and refuse,ashes,cans,garbage,paper bags and papers were deposited upon the defendant's land,together with coal slag, which is a good solid filling and was used to cover over the material that had been dumped. The city of Medford appointed a person to supervise the dumping and to see that all fires were out at four o'clock in the afternoon.The board of health on February 2,1945,notified the defendant that,unless a portable water pipe line was installed within ten days, its permit would**541 be cancelled,and requested that all dumping be done by the reclamation or ditch method thereby eliminating fires.This portable water pipe line was never installed. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 9 65 N.E.2d 537 Page 10 319 Mass.273,65 N.E.2d 537 *279 [1] The defendant contends that a zoning ordinance that requires it to secure a permit from the building commissioner,the granting of which must first be approved by the board of aldermen,in order to fill its land,which must be filled before it can be put to any valuable use, is an arbitrary and unreasonable interference with its rights. The Legislature by virtue of art. 60 of the Amendments to the Constitution of Massachusetts has enacted legislation authorizing cities and towns to make zoning ordinances and by-laws'for the purpose of promoting the health,safety, convenience,morals or welfare of[their]inhabitants,'G.L.(Ter.Ed.)c.40,§25,as appearing in St.1933,c.269, § 1, and they may for the aforesaid purposes by ordinance or by-law regulate the use of vacant land.A landowner,even though he may be deprived by these local enactments of a use of his land that would be more profitable to him,has no just ground of complaint unless he shows that the provisions of these ordinances or by-laws as applied to him and his property are plainly arbitrary and unreasonable and have no rational relation to any of the purposes mentioned in the statute or to any of the purposes for which the police power may be legitimately exercised.Euclid v.Ambler Realty Co., 272 U.S.365,47 S.Ct. 114,71 L.Ed.303,54 A.L.R. 1016;Nectow v.Cambridge,277 U.S. 183, 188,48 S.Ct.447,72 L.Ed.842;Wilbur v.Newton,302 Mass.38, 18 N.E.2d 365;Simon v.Needham,311 Mass.560,42 N.E.2d 516, 141 A.L.R.688;Pittsfield v.Oleksak,313 Mass.553,47 N.E.2d 930;Foster v.Mayor of Beverly,315 Mass.567,53 N.E.2d 693, 151 A.L.R.737;Burlington v.Dunn,318 Mass.216,61 N.E.2d 243. [2][3]The defendant has not been absolutely prohibited from filling its land.The city has gone no farther than to forbid it to fill the land by using it as a public or private dump unless it has secured a permit from the building commissioner that has been approved by the board of aldermen and also a permit from the board of health.It is open to the defendant to fill in the land in any manner it sees fit,other than by means of a public or private dump.It cannot use its land for the deposit or refuse collected from dwellings without a permit from and board of health. The nature of refuse of this character would seem to be a matter of common knowledge.The detrimental effect upon the inhabitants*280 of a city, their properties and the public welfare from the maintenance of a dump for the deposit of such refuse would also seem to be clear.The use of land for the purpose of dumping refuse from dwellings is a use that,if not a nuisance,has such harmful tendencies that unless guarded against a nuisance is likely to result.The characteristics of dumps and the effects that are Likely to result from their maintenance appear from our own decisions.Johnson v.Somerville,195 Mass.370, 81 N.E.268, 10 L.RA.,N.S.,715;Saperstein v.Everett,265 Mass. 195, 163 N.E.757;Gosselin v.Northbridge,296 Mass.351,5 N.E.2d 573;Maynary v.Carey Construction Co.,302 Mass.530, 19 N.E.2d 304.Even if we lay aside considerations affecting the public health, as did the board of health in revoking the defendant's permit,we cannot disregard the nature of the material dumped,the probability of odors from burning material,the inconvenience from smoke and the danger of fire.Indeed,it would seem that the mere prevention of fire would justify the ordinance requiring the approval of the board of aldermen for the issuance of a permit by the building commissioner for use of this vacant land as site of dump.Salem v.Maynes,123 Mass.372;Newton v Belger,143 Mass.598,10 N.E.464;Commonwealth v. Badger,243 Mass. 137, 137 N.E. 261; Selectmen of Saugus v.Mathey,305 Mass. 184,25 N.E.2d 162; Thomas Cusack Co.v.Chicago,242 U.S.526,529,37 S.Ct. 190,61 L.Ed.472,L.RA.1918A, 136,Ann.Cas.1917C,594.We see nothing in the application of the zoning ordinance to the defendant's property,restricting the use of its property for a private or public dump for the deposit of material of the nature shown by this record,that unreasonably or arbitrarily interferes with the defendant's rights.The ordinance goes no farther than the protection of the common welfare requires. [4][5][6]The defendant contends that the city had no authority to adopt a zoning ordinance requiring approval of the board of aldermen before a permit may be issued by the building commissioner to use land**542 for a private or public dump,because the grant of such a power would interfere with the power possessed by the board of appeals by virtue of G.L.(Ter.Ed.)c.40,§30,as amended.[See St.1945,c.167.]*281 The city,doubtless,could pass an ordinance providing for the granting of an exception by the board of appeals in reference to dumps,and a permit by the board of appeals would authorize the use of the land for this purpose.Lambert v.Board of Appeals of Lowell,295 Mass.224,3 N.E.2d 784. The city,however,was not bound to deal with the subject matter in such a manner. The zoning statutes, Gt. (Ter.Ed.)c.40,§§25-30A,inclusive,as amended,do not in terms forbid the reservation by the legislative branch of the city of the power to approve permits for dumps or for any of the other objectionable uses designated in section 19 of the zoning ordinance.The general plan ofthis ordinance is to prohibit these objectionable uses and to provide for a limitation of this prohibition by the granting of a permit by the building commissioner which has been approved by the board of 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 10 65 N.E.2d 537 Page 11 319 Mass.273,65 N.E.2d 537 aldermen.The city in regulating the use of the defendant's land exercises a power specifically delegated to it by the Legislature by G.L.(Ter.Ed)c.40,§25,as appearing in St.1933,c.269,§1. This particular power does not spring from art.60 of the Amendments to the Constitution of Massachusetts but is a part of the police power of the Commonwealth which has been conferred upon the city. Burlington v.Dunn,318 Mass.216,61 N.E2d 243. The city had the right to safeguard the public interest by requiring the approval of the board of aldermen before a permit should be issued for a dump,and the exercise of this power does not invade the province of the board of appeals or that of the board of health. Commonwealth v.Parks, 155 Mass. 531, 533, 30 N.E. 174;Commonwealth v. Cutter, 156 Mass. 52,29 N.E. 1146; Commonwealth v.Hubley, 172 Mass.58,59,51 N.E.448,42 L.R.A.403,70 Am.St.Rep.242. The defendant has not applied to the plaintiff for a permit,and it will be time enough to decide what remedy it may have in the case of a refusal by the aldermen to approve the application for a permit. [7] The granting or withholding of approval of a permit by the board of aldermen is not made dependent upon the untrammeled discretion of the board.The principles for guiding the board and the standards to be observed by the board are adequately stated in the ordinance with as much*282 certainty as the nature of the subject matter reasonably permits. Guinan v.Famous Players-Lasky Corp.267 Mass.501,515, 167 N.E.235;General Outdoor Advertising Co.Inc.v. Department of Public Works,289 Mass. 149, 192, 193 N.E.799;Lexington v.Govenar,295 Mass.31,3 N.E.2d 19; Commonwealth v.Hudson,315 Mass.335,341,342,52 N.E.2d 566;Federal Radio Commission v.Nelson Brothers Bond&Mortgage Co.289 U.S.266,285,53 S.Ct.627,77 L.Ed. 1166,89 A.L.R.406;Bowles v.Willingham,321 U.S. 503,514,515,64 S.Ct.641,88 L.Ed.892. [8]The ordinance of December 20,1938,granting the board ofhealth power to make rules and regulations for the control of all dumping of refuse and for the control of all places used for dumping of refuse did not leave the board of aldermen without power under section 19 of the zoning ordinance to approve permits.Such a permit is necessary for the location or establishment of a dump.A permit from the board of health is required for the operation or maintenance of the dump. A citizen sometimes requires two permits to do a certain act or to make a particular use of his property.Commonwealth v.Ellis, 158 Mass.555,33 N.E.651;Commonwealth v.McGann,213 Mass.213,100 N.E.355;Marchesi v.Selectmen of Winchester,312 Mass.28,42 N.E.2d 817. [9][10]The Judge found that a comparatively small portion of the land has been casually and sporadically filled,and that such filling as was done prior to the amendment of the zoning ordinance on January 24, 1935,so as to include dumps, was not in fact or in law a prior existing nonconforming use.A careful examination of the testimony covering a period of a quarter of a century with reference to the times when materials ranging from broken bricks from an old brick factory which was located in the vicinity,and ashes to mud and peat excavated for the construction of the new Wellington Bridge in 1934 and 1935,were deposited on some portion of this lot of one hundred eighty-eight thousand square feet,together with other evidence tending to indicate that this land was not used for a dump until after 1935,does not demonstrate that the judge was plainly wrong in the finding**543 that the land was not then utilized for a nonconforming use.On an appeal in equity findings made by a judge upon oral evidence cannot be reversed unless*283 they are shown to be plainly wrong.Lowell Bar Association v.Loeb,315 Mass. 176,52 N.E.2d 27;Silbert v.Kerstein,318 Mass.476,62 N.E.2d 109.A finding permissible on the testimony is that the potentialities present in 1935 had in later years and prior to the filing of the bill developed into a full fledged dump. See Lexington v.Bean,272 Mass. 547, 172 N.E. 867; Marblehead v.Rosenthal,316 Mass.124,55 N.E2d 13;Burlington v.Dunn,318 Mass.216,61 N.E2d 243.Compare Cochran v.Roemer,287 Mass.500,192 N.E.58;Building Commissioner of Medford v.McGrath,312 Mass.461,45 N.E.2d 265. [11][12][13]The fact that the city of Medford is dumping refuse upon the defendant's land without and permit does not bar relief on this bill in equity.The fact that some one else is violating the ordinance furnishes no excuse or justification 0 2010 Thomson Reuters,No Claim to Orig.US Gov.Works. 11 65 N.E.2d 537 Page 12 319 Mass.273,65 N.E.2d 537 for a violation by the defendant.Morley v.Police Commissioner of Boston,261 Mass.269,280, 159 N.E.41.The bill is brought to enforce the zoning ordinance for the public welfare,Lincoln v.Giles,317 Mass.185,187,57 N.E.2d 554, and the building inspector who is charged with the enforcement of this ordinance is not estopped by the alleged action of the city or its officials,nor is the city itself.Brookline v.Whidden,229 Mass.485,492,493,118 N.E.981;Building Commissioner of Brookline v.McManus,263 Mass.270,274,160 N.E.887.A city should comply with its ordinances. 'It may rightly be expected to set an example of obedience to law.'Commonwealth v.Hudson,315 Mass.335,343,52 N.E.2d 566, 572. The defendant is not remediless if it really objects to dumping by the city. It has not filed any counterclaim or taken any other steps to protect its property.Kelley v.Board of Health of Peabody,248 Mass.165, 169, 143 N.E.39;Suburban Land Co.Inc.v.Billerica,314 Mass. 184, 194,49 N.E.2d 1012, 147 A.L.R.660. [14][15][161 The defendant objects to the form of the decree on the ground that it is unable to understand what it is restrained from doing and especially whether it is restrained from pennitting the dumping of ashes from dwellings. Before discussing that subject,it is necessary to point out that the building commissioner,who is the sole plaintiff,has no authority to enforce the regulations of the board of health,Mayor of Cambridge v.Dean,300 Mass. 174, 14 N.E.2d 163, and bills for injunctions to enforce zoning ordinances are usually and properly brought in the name of the municipality.Worcester*284 Board of Health v.Tupper,210 Mass.378,96 N.E. 1096;Lexington v.Bean,272 Mass. 547, 172 N.E. 867.This suit has been fully and fairly tried.It appears that the defendant is using its land for a dump without any permit from the building commissioner and in the absence of a permit from the board of health.It the bill is amended by substituting the city as a party plaintiff for the building commissioner,the city can enforce the zoning ordinance and the regulation of the board of health.The suit is one where such an amendment may well be allowed as is hereinafter provided.The case is considered on the assumption that such an amendment will be made.CLL.(Ter.Ed.) c.231,§ 125;Thayer Academy v.Assessors of Braintree,232 Mass.402,122 N.E.410;Bauer v.Mitchell,247 Mass. 522, 142 N.E. 815;New England Foundation Co. Inc. v.Elliott A. Watrous,Inc., 306 Mass. 177, 27 N.E.2d 756; Tompkins v.Sullivan,313 Mass.459,48 N.E.2d 15. We do not agree with the defendant that the violation of the health regulation is not in issue because the permit was revoked solely in compliance with the request of the board of aldermen.The defendant,as hereinafter appears in dealing with the petition for a writ of certiorari,has no just ground to quash the revocation of that permit.The bill alleges and the evidence proves that the defendant was maintaining a dump without a permit from the board of health.That is one of the matters involved in the present controversy and should now be settled. [17][18][19]A final decree should be as definite and certain as the circumstances allow in order that a defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of any ambiguity in the decree.MacCormac v.Flynn,313 Mass.547,550,48 N.E.2d 24;Carroll v.Hinchley,316 Mass.724, 731,56 N.E.2d 608;J.I.Case Co.v.National Labor Relations Board,321 U.S.332,341,64 S.Ct.576,88 L.Ed.762.. The first paragraph of the final decree enjoined the defendant from using its land'for the purpose of dumping garbage, ashes or other household refuse,unless such use shall have received the approval of the**544 board of aldermen and the authorization of the board of health,' and the second paragraph provided that nothing in the first paragraph*285 should be construed as preventing the defendant from making deposits on or filling in its land in any manner permitted by the zoning ordinance or in any manner that will not in the judgment of the board of health make it a menace to health or property.The defendant,in so far as the present suit is concerned,is not to be restrained from making any use of its land that is not forbidden by sections 19 and 20 of the zoning ordinance and section 16 of the regulations of the board of health.The relief granted should be measured by the ordinance and the regulation.As to the first paragraph,it should be noted that the land cannot be used for a dump without a permit from the building commissioner and that,other than conditions that might be attached to this permit,the control over the dump is to be exercised by the board of health,and this includes the nature of the material dumped upon the land and the manner in which the work is done.The regulation of the board of health,section 19,establish a form for granting approval for the use of land as a dump permits the 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 12 65 N.E.2d 537 Page 13 319 Mass.273,65 N.E.2d 537 'depositing or dumping of house dirt,rubbish and waste material***provided that no decomposing or offensive matter shall be dumped.'Rubbish in this regulation is synonymous with refuse,and like the term refuse should be construed to include ashes produced in dwellings.Vandine,petitioner,6 Pick. 187, 17 Am.Dec.351;Haley v.Boston,191 Mass. 291,293,294,77 N.E.888,5 L.R.A.,N.S., 1005.The dumping of garbage is prohibited by the said regulation in its present form. The plaintiff is given leave,if so advised,within thirty days after the date of the rescript,to apply to the Superior Court for an amendment to his bill substituting the city as plaintiff. It such amendment is not made,a final decree is to be entered enjoining the defendant from using its land as a private or public dump without a permit from the plaintiff.If such amendment is made,the fmal decree is to be modified by striking out all of that portion of the first paragraph after the words'within the city of Medford' and by substituting therefor the following:'as a private or public dump without a permit from the building commissioner,the issuance of which has been approved by*286 the board of aldermen,or as a dumping ground for any decomposing or offensive matter,or for the dumping of house dirt,rubbish and waste material without a permit from the board of health.'The second paragraph of that decree is to be struck out. So ordered. [20][21][22][23][24]The petitioner's appeal from the judgment dismissing its petition for a writ of certiorari requires little discussion in view of what has already been said.The petitioner had no permit from the building commissioner and without it cannot use its land as a site for a dump.In these circumstances,a permit from the board of health would not authorize the petitioner to maintain the dump. That permit did not authorize it to violate the zoning ordinance. Commonwealth v.Fenton, 139 Mass. 195,29 N.E.653;Commonwealth v.Ellis, 158 Mass.555,33 N.E.651;Milton v. Donnelly, 306 Mass. 451, 28 N.E.2d 438; Lincoln v. Giles, 317 Mass. 185, 57 N.E.2d 554. At the time of its revocation without notice to the petitioner or a hearing the permit was inoperative although outstanding and for aught that appears in the record it might never become operative. A zoning ordinance, in one instance at least, is to be considered superior to a health regulation.The authority of a board of health to assign certain places for the exercise of an offensive trade or employment must yield to the provisions of the statutes and ordinances pertaining to zoning.CIL. (Ter.Ed.)c. 111, § 143,as appearing in St.1933,c.269, §2.Lincoln v. Murphy,314 Mass. 16,49 N.E.2d 453, 146 A.L.R.1196.The writ does not issue as matter of right but rests in sound judicial discretion.It is the general rule,where, as here,there is no showing of substantial injury or manifest injustice,that certiorari will not issue.Boston v.White Fuel Corp.294 Mass.258, 1 N.E.2d 186;Mullholland v. State Racing Commission,295 Mass.286,3 N.E.2d 773;Walsh v.Justice of District Court of Springfield,297 Mass.472,9 N.E.2d 555.The revocation of the permit results in no hardship to the petitioner unless and until it has complied with the zoning ordinance.See Vorenberg v.Bunnell,257 Mass.399,408,153 N.E.884,48 A.L.R. 1431;Jenney v.Hynes,282 Mass. 182, 194,184 N.E.444;Brackett v.Board of Appeal of Boston,311 Mass.52,57,39 N.E.2d 956. Judgment affumed. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 13 Westlaw 862 N.E.2d 393 Page 1 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) Appeals Court of Massachusetts, Franklin. TOWN OF ORANGE • FN1.By and through its building inspector,Brian Gale. v. Joseph SHAY,Jr.,&another.' FN2.Michael Generazio. No.06-P-439. Argued Nov. 16,2006. Decided March 2,2007. Background:Town brought action against landowner,seeking permanent injunction to prevent landowners from further removing gravel or other material,including topsoil,from their property on grounds of nonconforming use.Following a bench trial,the Superior Court Department,Franklin County,Mary-Lou Rup,J.,ordered the injunction,and landowners appealed. Holding:The Appeals Court,Lenk,J.,held that landowners'predecessor-in-interest had abandoned nonconforming use of the property. Affirmed. West Headnotes [1]Zoning and Planning 414 X337 414 Zoning and Planning 414W Nonconforming Uses 414k336 Discontinuance or Abandonment 4I4k337 k.Cessation of Use.Most Cited Cases Landowners'predecessor-in-interest abandoned nonconforming gravel and sand removal use of the property,regardless 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 Westtaw. 862 N.E2d 393 Page 2 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) of whether that use involved entire parcel or only a portion of the parcel,as predecessor's operations ceased altogether over 40 years before landowners began their permitless sand and gravel removal operation.M.GL.A.c.40A,§6. [2]Zoning and Planning 414 X336.1 414 Zoning and Planning 414W Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases Abandonment of a prior nonconforming use requires the concurrence of two factors:(1)the intent to abandon and(2) voluntary conduct,whether affirmative or negative,which carries the implication of abandonment.M.GL.A.c.40A, §6. [3]Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases While abandonment can happen momentarily,without the lapse of any stated period of time,the phrase"not used,"as the Legislature employed it in the Zoning Act's abandonment provision, contemplates a simple cessation of a nonconforming use for a period of at least two years.M.GL.A.c.40A,§6. [4]Zoning and Planning 414 C=337 414 Zoning and Planning 414W Nonconforming Uses 414k336 Discontinuance or Abandonment 4141337 k.Cessation of Use.Most Cited Cases Where the lapse of time following the cessation of the nonconforming use is so significant that abandonment exists as a matter of law,evidence of things done or not done carries the implication of abandonment and supports a finding of intent to abandon the nonconforming use,whatever the avowed state of mind of the owner.M.GL.A.e.40A,§6. "393 Scott Graves,Gardner,for Joseph Shay,Jr. Donna L.MacNicol,Greenfield,for the plaintiff. **394 Present:LENK,SMITH,&COHEN,JJ. LENK,J. C 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 Wdstlaw. 862 N.E.2d 393 Page 3 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) *358 Judgment entered after a bench trial permanently enjoining the defendants, Joseph Shay, Jr., and Michael Generazio,from further removing gravel or other material,including topsoil,from their property located at Holtshire Road in Orange(town)?D On appeal,the defendants claim that their current gravel*359 and sand removal operation is protected from the town's zoning by-law as a prior nonconforming use that was never abandoned.They contend that, in determining otherwise,the judge erred in certain of her rulings of law and made findings of fact that were clearly erroneous.We affirm. FN3.This case is a consolidation of the defendants'appeal from a town zoning board of appeals decision(CIL. c.40A,§ 17)and from the town's enforcement order(GL.c.40A,§7).The building inspector originally issued a cease and desist order on March 13,2002.The defendants then appealed the order to the town's zoning board ofappeals,which upheld the order;the defendants appealed to the Superior Court.When the defendants refused to cease and desist their operation,the town filed a complaint in the Superior Court as well as a motion for a preliminary injunction;this motion was denied on June 24,2003. The defendants subsequently halted the operation pursuant to a cease and desist order from the town conservation commission and the Department of Environmental Protection for violations of the Wetlands Protection Act,CIL.c.131,§40.In November,2003, however,the defendants resumed their operation and the town renewed its motion for a preliminary injunction. Before the judge issued his decision,the parties agreed that the defendants would cease operations until a trial on the merits.The defendants'appeal from the decision of the zoning board of appeals was consolidated with the town's complaint,and a trial on the merits was held on September 27 and 28, 2004. The issues in both actions are the same. Background At issue in this case is an approximately eight-acre portion(the parcel)of twenty-three acres of property located in Zoning District C.The defendants'predecessor in title,Ronald Hurlburt,inherited the property from his mother in 1944 and sold it to the defendants in 2000.The parcel was originally used by the Hurlburt family for pasture and a hay field.Around 1935,Hurlburt began a small sand and gravel removal operation in the rear northeast section of the parcel in conjunction with his farming activities(the original sand and gravel operation).The use expanded considerably in the period from 1957 to 1958,and the parties offered conflicting evidence as to the extent of such use thereafter.Prior to 1981,Hurlburt's use of the parcel for gravel removal did not violate any town zoning ordinance;on August 24,1981, however,the town amended its by-law to require a special permit for earth removal.After the defendants acquired the property in 2000,they began a sand and gravel operation on the entire parcel,which involved removing topsoil,trees, shrubs,and vegetation from the property.The defendants did not obtain a special permit for that purpose.Complaints from neighbors about increased traffic from trucks and heavy equipment,as well as an abundance of noise,dirt and dust in the area,set in motion the legal proceedings described above.'''' FN4.See note 3,supra. 1.The defendants'case.At trial,Hurlburt,his long-time*360 neighbor Ronald Stone,and the defendant Shay testified to the following.Although part of the parcel was used as pasture and a hay field,in 1935 Hurlburt began the original sand and gravel operation on approximately one acre of the parcel;this operation continued to varying degrees over the next two**395 decades.From 1957 to 1958,Hurlburt greatly expanded his sand and gravel operation to include the entire parcel in order to meet the demand for materials occasioned by the reconstruction of a nearby portion of Route 2.This necessitated the removal of all trees and the use of dump trucks,front-end loaders,bulldozers,scraper/loader pans,and tractors on the parcel during the daylight hours.r"'After 1958,the sand and gravel operation continued on the entire parcel,except for a small portion of land in the front,up until the time the parcel was sold to the defendants;the scope of the sand and gravel operation ebbed and flowed in response to demand,but was never abandoned. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 Wdsttavu 862 N.E.2d 393 Page 4 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) FN5.Hurlburt testified that he sold all his cows in 1957 and 1958 in order to use the parcel solely for gravel removal: 2. The town's case.Phyllis Kingsbury,Pauline Bixby,Thomas Pearson,Alana and Thomas Cox,Thomas Forest,and Larry Hurlburt,"all of whom had lived in the area for many years,testified as follows for the town.Although the original sand and gravel operation was in place to varying degrees over the years,gravel removal even in 1957 and 1958 did not extend to the entire parcel but rather was limited to a small portion in the northeast and east rear part ofthe parcel (the 1957-1958 operation)nu;the remaining land in the front of the parcel was always used as a pasture or hay field. Before the defendants started their gravel operation,trucks infrequently(about once each year)drove to the rear of the parcel,presumably to obtain sand and gravel;after 2001,however,traffic increased to about fifty trucks entering and leaving the parcel on a daily basis from about 7:00 A.M.until about 6:00 P.M.FN8 A high level of noise resulted from the operation of heavy equipment,including*361 excavators,dump trucks,and bucket loaders,and sand and dust blew onto neighboring property. FN6.Larry Hurlburt is the son of Ronald Hurlburt. FN7. The exact dimensions of the 1957-1958 operation are not in the record,but it appears from the town witnesses'testimony that it did not come close to involving the entire parcel. FN8.The defendant Shay testified,in contrast,that traffic was limited to seven or eight trucks per day,"doing about eight or[nine]loads apiece." 3.The judge's ruling. 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.r'She concluded that the defendants'operation failed all three prongs of the test set forth in Bridgewater v. Chuckran, 351 Mass.20,23,217 N.E.2d 726(1966),and Powers v.Building Inspector of Barnstable, 363 Mass. 648, 653, 296 N.E.2d 491 (1973), and was thus an impermissible expansion of a prior nonconforming use.Th"She went on**396 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. FN9.The judge had before her,among other exhibits,photographs ofthe parcel in the 1960's showing a pasture and a horse grazing,as well as pictures taken in 2002 showing the extent of defendants'use of the parcel. FNI0. General Laws c.40A, § 6,provides protection in the form of exemption from subsequently enacted zoning ordinances for any prior nonconforming use that does not substantially extend that use to the detriment of the neighborhood.Our case law has applied a three-pronged test outlined in Bridgewater v. Chuckran, 351 Mass,at 23,217 N.E.2d 726,and Powers v.Building Inspector of Barnstable,363 Mass.at 653,296 N.E.2d 491,to make the requisite determination."Under that test,we inquire:(1)'Whether the[current]use reflects 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 Westlaw. 862 N.E.2d 393 Page 5 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) the"nature and purpose"ofthe[prior]use,'(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." ' "Derby Ref Co. v. Chelsea, 407 Mass. 703,712, 555 N.E2d 534 (1990), quoting from Bridgewater v. Chuckran,supra. Discussion.We must accept"the trial judge's findings of fact unless they are clearly erroneous."Tamerlane Realty That v. Board of Appeals of Provincetown, 23 Mass.App.Ct. 450, 453, 503 N.E.2d 464 (1987). "A finding is 'clearly erroneous'when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."J.A.Sullivan Corp.v.Commonwealth,397 Mass.789, 792,494 N.E.2d 374(1986),quoting from United States v. United States Gypsum Co.,333 U.S.364,395,68 S.Ct.525, 92 L.Ed.746(1948).When the trial judge has seen and heard the witnesses,we may revise the findings*362 of the judge "only in a very clear and exceptional case."Spiegel v.Beacon Participations,Inc.,297 Mass.398,407-408,8 N.E.2d 895(1937),quoting from Thomas v.Beals, 154 Mass.51,52,27 N.E. 1004(1891)."[C]redibility of a party or other witness who appeared at trial is quintessentially the domain of the trial judge,in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings."Johnston v.Johnston,38 Mass.App.Ct. 531,536,649 N.E.2d 799(1995).No such showing has been made here.Further,while it has not been made to appear that the judge erred in her application of the Bridgewater v. Chuckran test to the facts she found,we need not reach or address the point given the extinguishment of the prior use. [1] The trial judge was correct to conclude as matter of law that, even if it were to be assumed that the 1957-1958 operation had involved the entire parcel,Hurlburt had nonetheless abandoned that use after 1958.'' FN11. Although the defendants contend that the issue of abandonment was not before the judge, they are incorrect.The defendants argued at trial that the 19574958 operation involved the entire parcel and was never abandoned,and the judge acted appropriately in ruling on that issue. The town's amended zoning by-law,enacted in 1981,provides that"[a]nonconforming use which has been discontinued for two or more years shall not be re-established,and all future use shall conform to this bylaw."The 1981 by-law required a special permit for all earth removal activities,with the exception ofthree limited circumstances not applicable here.Whatever the extent of the 1957-1958 operation,use to such an extent was nonrecurring thereafter,i.e.,gravel removal use of that magnitude had been discontinued for two or more years by around 1960.The prior nonconforming use was thus extinguished by nonuse for two or more years. We recognize, however, that although the trial judge used the terms "discontinuance" and "abandonment" interchangeably,the terms are in fact distinct, and this interchangeable use of the terms may have engendered some' confusion.While the outcome here remains unaffected,clarification may be useful. Prior to enactment of the Zoning Act, G.L. c. 40A, in 1975, our case law construed the terms "abandoned" and "discontinued" as being synonymous. **397 Whether a particular municipal *363 zoning ordinance provided for extinguishment of nonconforming uses by use of the term"abandoned"or"discontinued"was of no moment since the terms were deemed interchangeable.See Pioneer Insulation&Modernizing Corp.v.Lynn,331 Mass.560,564-565,120 N.E.2d 913 (1954). See generally Alper & Woodward, Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of Provincetown:Extinguishment of Non-Conforming Uses,42 Boston Bar J.8(January/February 1998). 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 Westlaw. • 862 N.E.2d 393 Page 6 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) [2][3]Since 1975,however,the Zoning Act has permitted municipalities to"define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more."GL.c.40A,§6,as appearing in St.1975,c. • 808, § 3. In so doing, the Legislature provided two separate avenues by which a prior nonconforming use can be extinguished:(a)abandonment;and(b)a period of nonuse of two or more years.The two concepts were thus no longer interchangeable. See Ka-Hur Enterprises,Inc. v. Zoning Bd of Appeals of Provincetown, 424 Mass.404,406,676 N.E.2d 838 (1997)'1'; Bartlett v. Board of Appeals of Lakeville, 23 Mass.App.Ct. 664, 668-669, 505 N.E.2d 193 (1987):Abandonment requires"the concurrence of two factors,(1)the intent to abandon and(2)voluntary conduct, whether affirmative or negative,which carries the implication of abandonment"DialAway Co.v.Zoning Ed ofAppeals ofAuburn,41 Mass.App.Ct 165,172,669 N.E.2d 446(1996),quoting from Derby Ref Co.v.Chelsea,407 Mass.703, 708,555 N.E.2d 534(1990).While abandonment can happen"momentarily,without the lapse of any stated period of time,"the phrase"not used,"as the Legislature employed it,contemplates"a simple cessation of a nonconforming use for a period of at least two years."Bartlett v.Board of Appeals of*364Lakeville,supra at 669,505 N.E2d 193.See Davis v.Zoning Bd of Chatham, 52 Mass.App.Ct.349,353 n.9,754 N.E.2d 101(2001). FN12. In Ka-Hur, the court acknowledged that,since the enactment of G.L. c.40A, § 6, it had issued two opinions,Derby Ref. Co.v.Chelsea,407 Mass.703,555 N.E2d 534(1990),and Cape Resort Hotels,Inc.v. Alcoholic Lic. Bd.of Falmouth, 385 Mass. 205, 431 N.E.2d 213 (1982), that equated "abandoned" with "discontinued."Ka-Hur v. Zoning Ed. of Appeals of Provincetown, supra at 406-407,676 N.E.2d 838.The court distinguished its decisions in both those cases,concluding that Cape Resorts involved a pre-Zoning Act by-law and a conveyance,while in Derby Ref. Co.,the municipality argued that the use had been abandoned. Ibid The court stated that"our statement in Derby Ref Co. should not be read to require an abandonment in order to extinguish a nonconforming use,but rather as a reaffirmation that abandonment is simply one of the • two ways in which a nonconforming use can be extinguished."Id at 407,676 N.E.2d 838. [4]As earlier discussed,regardless of the extent of the prior nonconforming use in this case, it was extinguished by discontinuance in or about 1960. UnhIce the 1981 town zoning by-law, which allowed for extinguishment only by discontinuance, the 2000 by-law-also applicable here-added abandonment as another method by which a prior nonconforming use can be terminated.Th In view of this,the judge correctly concluded that use of the entire parcel for gravel and sand removal had been abandoned.Where"the lapse of time following the[cessation of the nonconforming use] ...is so significant that abandonment exists as a matter of law...[,] `evidence of**398 things done or not done... carries the implication of abandonment...[and][s]upports a finding of intent,whatever the avowed state of mind of the owner.......Dial Away Co.v.Zoning Ed ofAppeals ofAuburn,41 Mass.App.Ct.at 172,669 N.E.2d 446,quoting from Dobbs it Board of Appeals of Northampton, 339 Mass.684,686-687, 162 N.E.2d 32(1959)(twenty-three years after cessation ofactivity).The 1957-1958 operation,whether involving only the northeast and east rear portions ofthe parcel, or extending to the entire parcel,ceased altogether in 1958,and the passage of over forty years carries a clear implication of abandonment.' FN13. The 2000 town by-law reads, in relevant part:"[a] nonconforming use which has been abandoned, discontinued for a period of two years...or changed to a conforming use,shall not be re-established and any further use of the premises shall conform with this By-law." FN14.We note that there was some evidence that gravel removal continued on the one-acre site of the original operation,perhaps until the defendants bought the property.Although it is possible that the defendants could continue to use that small gravel pit,see Burlington v.Dunn,318 Mass.216,223,61 N.E.2d 243,cert.denied, 326 U.S.739,66 S.Ct.51,90 L.Ed.441 (1945),we decline to address the point because the defendants have ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 Wdstlavu 862 N.E.2d 393 Page 7 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) not argued it and apparently make no claim as to that acre. Because the prior nonconforming use was extinguished by both abandonment and discontinuance,we need not address the question whether the current use of the parcel is a permissible extension of that use.See Oakham Sand&Gravel Corp. v. Oakham, 54 Mass.App.Ct.80,84,763 N.E.2d 529(2002). Judgment affirmed ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 • • op Wealth Management RECEIVED TD Bank,N.A. 495 Station Avenue tal,' AT HEARING P.O.Box 1180 South Yarmouth,MA 02664 Toll Free: 800rth Wealth a0 'e(Fru,av TDBanknorthWealthManagemen[.com ClivC January 22,2010 • Chairman Zoning Board of Appeals Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: 143 River Street,South Yarmouth,MA Dear Mr. Chairman and Members of the Board of Appeals: I am writing this letter at the request of Attorney Charles J. Humphreys who represents Dr. William Marasco in the matter presently before the Zoning Board of Appeals. Attorney Humphreys advised me that the Building Inspector and certain abutters believe that the original letters which I wrote to the Building Inspector Jim Brandolini dated February 15,2006 and March 6, 2006, indicating no intention to abandon or abandonment of the garage apartment, were somehow rendered untrue by subsequent letters which I wrote in response to requests from Dr. Shea. Let me state for the record that that was not my intention and I do stand by the letters of February 15, 2006 and March 6, 2006. It might be helpful to point out that during the 1990s the Coughlin sisters and other members of the Coughlin family used the property. In later years I know that a woman by the name of Eva(last name unknown), assisted the sisters and stayed in the apartment when they were in South Yarmouth. There was always an issue with regard to when to shut the water off because the sisters wanted to leave the water on for themselves and others when they visited the property during the off season. I was always concerned that the pipes may freeze during the periods when no one was using the property. I believe that I always kept the electricity on. The Coughlin sisters died well after the property was sold to Dr. Marasco. While I rarely visited the property from 1997 to 2001, I did have reason to believe that the sisters loved to spend time at the property and were driven there occasionally by their assistant Eva and perhaps other family members. That was the reason the house and the apartment remained fully furnished and ready to live in. • Sincerely, r Richard Bussiere, CTFA Vice President Wealth Advisor ® TD Wealth Management is a service mart of The Toronto-Dominion Bank.Used with permission. 1 w Law Offices CFiarles 9 Jfumpfireys 15 BmokStreet, Cohasset, (Massachusetts 02025 'Tel(781)383-0600 Tat(781)383-2734 cjfitaw@comcast.net January 26,2010 Chairman Zoning Board of Appeals Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth, MA 02664 Re: 143 River Street,South Yarmouth,MA Dear Mr. Chairman and Members of the Board of Appeals: The Hearing held on December 10, 2009 was helpful in raising many of the issues which are involved in this case. The purpose of this Memorandum is to focus on the issues and their ramifications. The issues are not set forth necessarily in their order of importance in determining the matter. 1. The Building Commissioner made a decision. It was suggested that the hearing was not an appeal of a decision of the Building Commissioner's ruling that the use of the garage apartment was not legal but rather an appeal from the Building Commissioner's request to receive more information regarding the past use of the premises. The Building Commissioner's letter to Dr. Marasco dated August 11, 2009 is a decision. It ordered Dr. Marasco to: a. "Provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"; or b. "File a variance petition with the Zoning Board of Appeals". It also notified him: a. "You have a right to appeal the order to the Zoning Board of Appeals." p. • b. "Failure to take any action will result in appropriate zoning enforcement, which may include the issuance of tickets with fines up to $300 per day." Since Dr. Marasco believed that he would be unable to provide sufficient documentation within the thirty(30)day timeframe,his only recourse was to appeal the decision. The letter dated July 16,2009 is in fact a notice of a revocation of a building permit. The issue before the Board is whether the Building Commissioner may reverse a building permit lawfully granted over three(3)years after its issuance,completion of construction,and issuance of a certificate of occupancy and the use of the premises in accordance with the building permit. The appeal is properly taken. 2. Additional information regarding use. The Board also requested all parties to make further inquiry to determine whether there was any additional information to determine use. Without waiving his right to assert that additional information is unwarranted under the present circumstances, Dr. Marasco did inquire of certain residents of the neighborhood. He was unable to elicit any further testimony because of neighbors' intentions that they did not recall,never paid much attention to the use of the property;or were unwilling to give any statement because they did not want to offend other neighbors or become embroiled in a controversy. The former Trustee,Mr. Bussiere,was contacted and he has written a new letter to the Board of Appeals indicating that none of his letters should be construed to indicate that the apartment and the garage were abandoned and that he further believed that in the late 1990s,the Coughlin sisters visited the property and that their personal assistant stayed in the apartment. 3. A building permit which allows a certain specified structure for a certain specified use cannot be bifurcated to simply allow the permitted structure but later deny the specified use of the structure. G.L., Chapter 40A, § 7 provides that the Building Commissioner of a Town is also the Zoning Administrator. While it is clear that the Building Commissioner is responsible for insuring that all construction complies with the state and local building codes, § 7 also states that: "... the Building Commissioner ... shall be charged with the enforcement of the zoning ordinance or by-law and shall withhold a permit for the construction, alteration, or moving of any building or structure if the building or structure as constructed,altered,or moved would be in violation of any zoning ordinance or by-law; and no permit or license shall be granted for a new use of a building, structure,or land, which use would be in violation of any zoning,ordinance, or by-law." The statute specifically provides that building permits can only be issued if the proposed structure is in compliance with the bylaw, i.e. dimensional requirements such as lot size, set back coverage,etc., and that the use of the proposed structure is permitted by the zoning bylaw. 2 The building permit in the present case allowed for the replacement of a garage apartment by a new structure in complete plan detail for use as a garage apartment. The Board cannot now split the permit to allow the structure but deny the apartment use. The entire permit is at issue, not just a part. 4. The need to reconcile the apparent inconsistency between G.L., Chapter 40, §7 which states that: "... that if real property has been improved and used in accordance with the terms of the original building permit issue' b a •erson tut authorized to I . .1 , c ton,criminal or civil,the effect or purpose of which is to compel the abandonment limitation or modification of the use allowed by said permit or thctemovalzalteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action,suitor proceeding iscommenced and notice thereof ed in She registry of deeds for each county or district in wine the land lies within six years-nnnt afterthe commencement of the alleged violation of law ..." and Chapter 40A, § 15,which provides that: "Any appeal under Section 8 to a permit granting authority should be taken within thirty(30) days from the date of the order or decision which is being appealed." How does the board reconcile a statute which requires an appeal of a building permit to be made within thirty(30)days with another statute which requires that any action which seeks to compel the abandonment, limitation or modification of use allowed by a permit to be commenced within six(6)years. It should be clear to the Board that the Building Commissioner is in fact attempting to revoke the permit which had been granted on April 19, 2006. As I stated in my Memorandum dated December 16,2009,the issue of revocation of the permit is governed by the Court Decision in Town of Freetown, et al v. Town of Freetown Zoning Board of Appeals, Mass. Land Court 17, LCR 304 (2009). This case stands for two propositions: 1. "There is nothing in the record to indicate that the ... Building Commissioner has the authority to make a partial or intermediate decision on a permit application, which decision he or she may consider at a later time and thereby restart the appeal period"; 3 2. "A Building Commissioner cannot reconsider a Decision once issued"; and 3. "This redecision is not within the power of the Building Commissioner". It should be pointed out that the Court's reference above"there is nothing in the record which indicates", is the Court's way of saying that there is no language in the Freetown Bylaw or in the statutory scheme which the Court must take judicial notice of,which indicates that the Building Commissioner has the right to reconsider or revoke a building permit. The Yarmouth Bylaw grants no such authority either. The Building Commissioner's actions in the present case constitute an attempt to reconsider, revoke, or appeal the previously granted building permit. Such action is simply not permitted after the thirty (30) day period. We asked the Board to simply recognize the concept that a building permit properly applied for with full disclosure of the property site,definitive plans and clearly stated uses, become final after the expiration of the thirty(30) day appeal period. To hold otherwise would wreck havoc with the permit process, the construction, financing, and sale of any home within six(6)years of the permit's issuance. The obvious question then arises, what then is the purpose of Section 15,which would allow enforcement action for a period of six(6)years? To answer this question,which has never been clearly articulated by any court,the board must interpret these two sections in a way which they can be read compatibly. The board should note that Section 15 enforcement actions do not arise directly from the building commissioner but in fact are commenced by a request in writing by a third party, they are not initiated by the building commissioner. Section 15 also requires that the permit be for a"new use". The present case does not involve a"new use". The record shows that the garage apartment was in existence prior to the zoning change and has continued in existence in one form or another over the years. Further, Dr. Marasco has had annual rental permits since 2001. The Building Commissioner has always had the ability to investigate buildings and uses. One member of the Board stated that we in fact expect and encourage him to do so. We do not differ with that opinion but respectfully suggest that his authority to take action is not unbridled. There are many circumstances in which follow up investigations and enforcement action may be required. The following is a short list: a. The classic vague unsealed sketch plan used to get a permit results in a structure which is totally inconsistent in terms of size or location with the sketch plan permit; b. A landowner obtains a permit for a permitted use, i.e. a residential accessory garage, and thereafter uses the garage for a business or other use which is not permitted in the zoning district; 4 . s c. An owner obtains a building permit based upon engineered plans but simply disregards the permitted plans by expanding the permitted structure or relocating the structure in such a way that it violates the zoning bylaw; d. The permit was based on fraud or misrepresentation, i.e. misrepresented property lines, set back calculations,coverage calculations,and intended use. 5. Standing. The abutters have no standing. This present matter is before the Zoning Board of Appeals because of continual pressure applied by the Building Commissioner from certain neighbors in the area. Their anecdotal statements are often hearsay and not based on actual knowledge, are undated as to time and often are incomplete due to the neighbors living substantial portions of the year in other states. The common theme is that the use violates zoning and that they have an interest in insuring that the zoning bylaw is followed. There is no evidence of any particularized harm which any party of interest may have suffered. The case law is replete with rulings that being a party of interest is not enough and that the generalized concern with the enforcement of the zoning bylaw without a showing of particularized harm is not sufficient to grant standing to any neighbor. The Board should make a finding that the neighbors do not have standing. CONCLUSION Both the law and common sense dictate that a building commissioner cannot revoke or redecide the grant of a building permit. To rule otherwise would totally ignore the statutory requirement of a thirty(30)day appeal period. It would empower parties, including the building commissioner,to effectively pursue an appeal not allowed by law. We urge the Board to consider the ramifications which opening up validly granted permits would have on the ownership and financing, and purchase and sale of property. The Board should decide that the substance of this case is about a building permit and enforce the provisions of Chapter 40A, Section 15. We respectfully request that the Board grant Dr. Marasco's request to vacate the letter of the Building Inspector dated July 16, 2009 and conclude this matter. Respectfully submitted, WILLIAM MARASCO By his attorney, Charles J. Humphreys, Esquire 15 Brook Street Cohasset,MA 02025 (781)383-0600 BBO#244200 5 4"�jIS ten 'ictE fi 1 -r on 'ear "tom -_voc_LI 1� n' S! 4 a unc r ..1 ..)oIC S 'I '1; Y o is-1.s!y • J,< --�.rc,v -a ctyV.a T ' 09 bl ---'2U! .no j 41 ,1 -f b sii"aPi �J �c�q 2 ? I !u 'd t u`1 ..4-�vl4 -no 4 €411 -}17 ci- mai 1 I c d"1b'3 ...fro° !8 u 111 !CI "-KL U ► I�1'�J -oak Q4 5v.�1Jri t ?Pa -' ° Y +mssJn ! eh 71 .1-' aP ►Sa) _ 9 .rad wra,`6_ : I1-acGnod72r r r .n4 -qua -ay. 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F Os' 1 Mary LaFranchise From: jd.murphy ijd.murphy@verizon.netj Sent: Thursday, January 21,2010 5:10 PM To: Clark, Sandi; Brandolini, Jim; cjhlaw@comcast.net Cc: Bob Palmer; David Reid; Debra Martin ; Diane Moudouris; Doug Campbell; Joe Sarnosky; John Richards ; Renie Hammen; neitz.re@verizon.net; Sean Igoe; Steven DeYoung;Thomas Roche Subject: Re: BOA Meeting 1-28-10- Petition#4268-William Marasco Attachments: Memo of Law to ZBA 1-21-10-07.pdf Ladies and Gentlemen, Attached please find a copy of a letter memorandum in support of the Building Commissioner's actions which are the subject of the above referenced Petition. Please note that the first 15 pages of the attached constitute the narrative portion,while the bulk of the transmittal results from attaching copies of the judicial decisions referred to therein. Thank you. J Douglas Murphy ---Original Message From: Clark. Sandi To:jd.murphyaverizon.net; Brandolini, Jim ; 'cjhlawCWcomcast.net Cc: Bob Palmer; David Reid ; Debra Martin ; Diane Moudouris ; Doug Campbell ;-Joe Sarnosky; John Richards; Renie • Hamman ; Richard Neitz (neitz.re(o.verizon.net) ; Sean Igoe ; Steven DeYoung; Thomas Roche Sent:Wednesday, January 20, 2010 11:13 AM Subject: BOA Meeting 1-28-10-Petition#4268-William Marasco Dear Sirs: At the first meeting we requested any authority that either speaks in favor of or contrary to re-consideration by the Building Commissioner of issuances of a permit after construction has been completed. Would you kindly provide by e-mail any such material or authority you may have found. Steven DeYoung, Chairman 1 J. DOUGLAS MURPHY COUNSELOR AT LAW 243 South Street Lock Drawer M Hyannis,Massachusetts 02601-1412 Telephone: 508-775-3116 • Facsimile:508-775-3720 • Email:jd.murphy@verizon.net Please reply our File No. January 21,2010 Steven DeYoung,Esquire Chairman,Zoning Board of Appeals Town of Yarmouth 1146 Route 28 South Yarmouth,MA 02664-4451 Re: Petition No.4268:William Marasco seeking to reverse the decision of the Building Inspector dated July 14,2009 Dear Attorney DeYoung: Pursuant to your request following up on the December 10, 2009 Hearing of the Zoning Board ofAppeals concerning the above captioned matter,I submit this Memorandum for the Board's consideration. I construe the requested input to be directed to the issue of the Building Commissioner's authority to take action once a building permit has issued,and not as an invitation to brief the merits of entire subject matter i.e. the Applicant's alleged entitlement to alter and continue an otherwise unlawful non-conforming two family dwelling and duplex use referred to in Appeal No. 4268. Nevertheless,it is difficult to address the limited issue without expanding into the history and the basis upon which the Building Commissioner took the action which he took; and furthermore whether or not there is an appealable "decision" or "order"before the Board which is within the jurisdiction of the Board to revoke. The current Hearing was precipitated by an application (the "Application") of William Marasco(the"Applicant"),a resident at 143 River Street,South Yarmouth,Massachusetts 02664 seeking to have the Board reverse a decision of the Building Inspector dated July 14, 2009. The Application identifies the"Decision"appealed from as that"dated 7-14-09". However,the primary focus of attention has been upon a letter generated by Building Commissioner James D.Brandolini, C.B.O. (The"Commissioner") dated July 1Q,2009 and addressed to"Dr.William Marasco, 143 River Street, South Yarmouth,MA 02664,Re: 143 River Street"(the"Letter"). Secondarily,the Board inquired into the issues and distinctions involving"discontinuance"versus"abandonment" of a lawful,pre-existing non-conforming structure or use and so this memorandum addresses those issues as well. 1 • The asserted reasons advanced by the Applicant in support ofareversal are:'Building Permit issued pre-existing,non-conforming two-family still valid".__r In view of the forgoing,I shall focus the attention of this Memo upon four issues,seriatim: 1. Whether discontinuance of a lawful;pre-existing non-conforming structure or use j any y longer requires an intention to abandon;; 2. LWhether the.Commissioner possesses the authority,pursuant to Section 7of Chaptey 40A, and following the issuance of a building permit by an individual duly L uthorized to issue such permits,to impose further validation requirements or even---- to rescind or revoke the permit and/or issue a cease and desist order to preclude i- further use or to dissemble that which has been constructed pursuant to the permit., 3. Whether or not the Applicant should be estoppedfrom bringing an Appeal based'' �_.i-- • ,. 4..sa_au..«ate uaw. . upon his Application 4. Whether the Application-Brings the Letter orAny_APPe41aUle Order-or Decision' Before This Board.As.Alt t?,ppeal Under$ecti94.,8;,/ I ask the Board to take administrative notice that the Building Commissioner occupies the position formerly designated as the Building Inspector,and he is the zoning enforcement officer and the chief of the Building Department,charged with enforcing the Building Code and the Zoning By- law. STATEMENT OF PERTINENT FACTS The present dispute involves a residential property located at 143 River Street, South Yarmouth;(the"Premises')in an RS40 Residential Zoning District. The Premises are shown on Yarmouth Assessor's Map 0034 as Parcel No. 282 and the title reference is Barnstable County Registry of Deeds Book 22686, Page 215, all according to the-Application filed with the Zoning pard of Appeals(and clocked in by the Town Clerk on August 13,2009)as.Appeal No.42687. The Premises are an improved corner lot,surrounded on three sides by ways;on the west and north by Bass River Parkway and on the east by River Street.The dimensions of the Applicant's lot are disclosed generally on the Assessors maps,but more particularly on the Plan recorded in Plan Book 62,Page 151 (the"Plan")at the Barnstable County Registry of Deeds(copy attached),where the Premises are shown as Lot 3A. The RS40 Zoning District requires a minimum 40,000 square feet lot iiithiniinimuni 150 feet frontage,a minimum front yard setback of 30 feet,side and rear yard setbacks of 20 feet and a 2 maximum lot coverage of 25%(By-law Section 203.5). In addition,lot width must equal or exceed the lot frontage requirement,i.e.in this case 150 feet for a depth of at least 100 feet(By-law Section 203.5 H.);and as a corner lot,the Premises must have at least 100 feet of frontage on each of the other abutting streets. (By-law Section 203.5 F.) The Plan discloses that the Premises comprises an undersized lot of but 24,275 square feet which may exceed the minimum frontage requirement on the north (fronting upon Bass River Parkway)and on the easterly River Street but appears to fail the 100 foot minimum frontage test on the westerly facing Bass River Parkway frontage. Also, Section 203.5 C.Of the Bylaw requires that lots for two family dwellings must be,T twice the normal minimum lo t size of the District;tem this case a minumum lot size of 80,000 a. square feet Y ....r. .aux.. . It would appear(based on the Application,representations made at the hearing and records at the Barnstable County Registry of Deeds)that the Applicant initially acquired the Premises in his own name,by deed dated November 29,2001 and recorded the following day m Book 14509,Page' 192 _ . ...... Subsequently, by deed dated February 15, 2008 and recorded on February 21,2008, the Applicant conveyed the Premises for nominal consideration,to Northstar Properties Management,,,,/ I .C, having in address of 21 Aaron's,Way,West Yarmouth,Jper deed recorded in Book 22686, Page 215. The Applicant asserts that he relied in good faith upon the appearance of the Premises prior ' to his purchase in 2001 to determine there was satisfactory and adequate evidence that it was a mu lawful,pre-existing,non-conforming duplex structure." c """' '` ` ~ ' `` °."° ', .,.et., ..x The testimony,records of the Building Commissioner's office and Zoning By-Law provide compelling evidence that,in addition to the non-conforming use as-a-duplex,the existing structure? is non-conforming in at least two dimensional respects(lot size and lot frontage).7 The records at the Barnstable County Registry of Deeds disclose that prior to the Applicants acquisition of the Premises, they had been continuously owned by(or legal title had been held in trust for the benefit of)Edward L.Coughlin and his family since June of 1968(Deed at Book 1404, Page 495). Prior to the Coughlin ownership,the Premises appear to have been Continuously owned b one Dorothy Farrar from May 23,1952, : Mr.Coughlin died in 1972,survived by siblings and leaving the Premises to Cape Cod Bank and Trust Company,as Trustee,in trust for the benefit of the siblingsW As Trustee,the Bank(and its employees acting in its behalf)had a fiduciary obligation and 3 duty to secure,protect and manage the property for the benefit of the beneficiaries,during the entire term of Trusteeship."Thusthe Trustee had a legal obligation to maintain an awareness of the condition and use of the property. The Bank Officer charged with performing'these'fiduciary obligations on behalf of the Bank was,according to correspondence from him,Richard Bussiere. The Applicant has introduced no percipient evidence contradicting V the historical facts provided by Mr.Bussiere and substantiated in large measure by several abutters,including Dr.and Mrs.Richard W. Shea and the Honorable Richard Staff, a neighbor and attorney for the Coughlin family who offered testimony at the public Hearing. d rs, including those actual access tozi the Penisese testimony of andcounseled the Coughlers in family,was PP it hadnot been occupied who phad ed as a duplex from at 7 least 1997(and quite likely,earlier)and until the Applicant purchased the Premises in 2001 Mr. Bussiere states in correspondence addressing the issue of usage, that Mr. Coughlin's siblings informed him that Mr.Coughlin constructed the garage apartment sometime prior to 1971: It also seems clear from the correspondence provided by Richard Bussiere(in particular his letters dated November 16, 2007 (copy attached)), that a significant gap arose,in any active",r utilization of the rental unit.Whether or not Mr,Bussiere was vaugue or inconclusive in his earlier correspondence less than wholly forthcoming ill Specifically, Mr.Bussiere alleges that"During the 90's, it had not been occupied for home,yearsj Ffirthermore,Mt Bussiere states that in 1997 he shut down the utilities to the apartment. He, also stated that the Trustee did not anticipate using the apartment in the future./ The clear and compelling implication of Mr, Bussiere's correspondence is that[a, discontinuance ofduplex—use arose and continued foranummum ofthree to fouryears,and probably longer,prior to the Applicants purchase of the Premises in 2001. Records in the files of the Zoning Board of Appeals show that on November 6,1967,`• following a public hearing on October 19,1967(Petition No.871)the Zoning Board of appeals filed, aDecision which denied an application by the then owner seeking to convert an existing three bay/ garage into sleeping quarters). In its decision denying the requested zoning relief the Board discussed what existed and what was proposed. The Board noted that if the Petition was allowed it would,contrary to the then By-` law,enable the construction of a"...second dwelling on a single lot'and nota duplex.There is no explicit suggestion'that the"'sleeping quarters"also included the addition of a kitchen and/or bathroom facilities rather than simply"sleeping quarters". Nevertheless,the Board concluded that such a result would in any case derogate from the intent and purpose of the Zoning By-Law and denied the Petition. 4 The Yarmouth Water Department records indicate that on November 2,1967,prior to entry„/ of the Decision in petition No.871,a request for water service was filed with the Yarmouth Water Department bearing the notation"garage apt.". `4'"` •'• "" � -� —� On August 9, 1968 a,request for,water service.transfer,was filed,and,also bore the notation"garage apt? Recall that the Premises were purchased by Coughhlin in June of 1968. Extensive research and review of the records of the Building Commissioner's Officejeveals] no Building Permit nor Occupancy Certificate issued between November 6, 1967 (the date of the Decision rejecting Petition No.871)and August 9,1968 when the water service transfer request wase" filed.-There is not naW and there is no reason to believe that in 1967 and 1968 a Request for a transfer of water service,i.e. a change in billing name/address required approval of the Building Department or would have even triggered a notice to the Building Inspector. Nevertheless, it may be inferred from the records.describing the preceding events that;; subsequent to November_6, 1967,the owner of the Premises,without benefit of a Building Permit,' • effected some form of consolidation of structure so that a converted garage and the pre-existing' single family dwelling were somehow connected and thereafter appear to have constituted two lwing units within onestructure:a The legitimacy of the origination of such use is obviously suspect since the request for relief h' • was denied in 1967 and there exists no Building Department records,nor has the Applicant proffered any such records establishing the precise date or even a general date that such structure was created and the use initiated(However,see reference to assessors records below,suggesting such use in or - about 1974).)Thus,based upon the current record it is impossible to determine whether such use complied or did not comply with the requirements of the Zoning By-Law in existence at the time the use and structure first arose. ¶e do know that in March of 1971 the Yarmouth Town Meeting approved a Zoning By-Law Amendment which mandated that two-family dwellings thereafter required a minimum lot size 150% larger than the lot area required for a single-family dwelling within a given dismct.Furthermore, a two family dwelling could only be situated,as a matter of right,upon a lot having a minimum 125 foot lot width and a minimum 90 foot lot depth. (Note: the minimum lot size under the RS-40 Zoning District is now 40,000 square feet, with minimum frontage of 150 feet; and two family dwellings,where allowed,require twice(2x)the normal minimum lot size of the District,i.e.80,000 square feet minimum in the RS-40 District. Furthermore,the By-Law,Section 203.5H mandates a minimum lot frontage,in this case 150 feet for a depth of 100 feet) The oldest assessor's records available indicate that the improvements located on the Premises on June 4, 1974 may have included a breeze way(described on the records as a canopy, 7 x 30 feet). The floor plans included in the assessor's records include what appears to be a 424 square foot furnished area identified as"occupancy,other-cot",and a 340 square foot garage. The narrative description of the overall property is"hse bzy gar Ape',which would seem to indicate a ,(souse,breeze way,garage and apartment. , , , ..;.,,,.. • 5 • • On or about January ding Department received an a for s demolition andreconstruction building permit from the current Applicant. A search ofthe records Building Depfailed t los an 'or building permits or other definitive documentation for the Premises which might substantiate the historical usage as a lawful, pre- existing, non-conforming duplex structure and use. Thus, innFebruary 2006, the Building g Commissioner requested advice from Town Counsel,John Creney,to determine whether the then existing garage apartment qualified as a lawful,pre-existing,non-conforming use"either as part Of an existing duplex or as a separate detached apartment/dwelling unit, or whether zoning relief from the Zoning Board of Appeals would be necessary as a condition of issuing the requested demolition and reconstruction permits.'. 'kinder date ofMarch 6,2006 Attorney Creneyrespondedthat upon the basis of the facts then '4 jknown and represented it appeared that a lawful,pre-existing,non-conforming duplex use existed � relief from the Zoning Board of Appeals.; and could be lawfullycontinued without the need for The January 31,2006 applications requested a permit to demolish the 764 square foot,pre- existing,non-conforming garage,which included a 424 square foot dwelling unit,as well as apermit to replace the demolished garage with a 1,440 square foot structure containing a two bay garage and y. a'1,175 square foot second floor apartment., It appears from this information,that.the,proposed structure exceeded the footprint of the pre-existing structure. The Building Commissioner's examination of theplans filed with the applications suggested y l that the existing front setback but that the structure was non-conformingfor failure to meet the proposed stricture would remed that situation and bring the structure into compliance with all then; '1 current dimensional setbacks except lot size. Following receipt of the opinion of the Town Counsel (see above) and demolition of the on April19 2006;and a Certificate ofof the exiissuedq, indicating substantial completion of the reconstruction was issued on September 19,2006: (The Building Commissioner issued the permits for demolition and reconstruction in goody faith reliance upon the facts represented to him and those discovered through,research of Town records,as well as the opinion rendered by the Town Counsel The demolition and building permits enabledreplacement of a one story structure containing a two-car garage and single-family apartment,with a two story building housing a three-car garage and second floor apartment. On or about September of 2007 a neighborhood resident,Richard W.Shea,M.D.visited the Building Department to review the recordspertinent to the Premises and to discuss the permissibility of the razing and reconstruction which had occurred on the Premises over a year earlier Dr."Shea and his wife are the current owners ofthe propeityat 24 Bass River Parkway which is directly across the street from the Premises. Dr.Shea,by his own admission,has had intimate familiarity with the 6 Marasco property since the time it was owned by Farrar(i.e.,prior to 1968)and it appears that his, mother resided at 24 Bass River Parkway from 1957 until Dr. Shea and his wife took title in 1974" Subsequent to September 2007,Dr.Shea made several visits to the Building Department and reviewed records and discussed the context and legalities of the 2006 demolition and reconstruction, as well as the historic use of the Premises. It was not until June of 2008 that Dr.Shea shared copies of certain correspondence between himself and Richard Bussiere at TD Banknorth(successor to Cape Cod Bank and Trust Company, Trustee). Dr.Shea challenged the continuing use of the Premises as a duplex,alleging that such use had terminated prior to acquisition'of the Premises by the Applicant,as a result of non-use. It was not until such time,June of 2008,that through the Bussiere correspondence some more definitive information pertaining to the usage (and non-usage) of the Premises between 1972 and 2001 was presented to and reviewed by the Commissioner. 'The recordspertaining to the Premises, supplemented by Mr. Bussiere's correspondence suggest in compelling fashion,that the Premises constitute a non-conforming lot for both single and ie two-family use,that may have been converted to duplex useat some indeterminate date,when such use may or may not have been lawful;but that any such use was abandoned and discontinued for` more than two years prior to the resurrection of such use by the applicant sometime after 2001.,, It is a basic principal of zoning that structures and uses must conform to current zoning requirements unless they are the subject of some exception as a pre-existing structure or use,or after receiving variance orspecialpermit reliefpursuant to the authority granted by the Statute and By-law to the Board of Appeals,when the circumstances warrant such relief. There is no record of such relief ever aving been granted.To the contrary,as appears below,the Applicant has considered the Premises, in official filings with this Board and the Building Inspector, to be a single family property. I. WhetherDiscontinuanceOfALawful,Pre-existing Non-Conforming Structure Or Use Any Longer Requires An Intention To Abandon While not specificallyrequested by the Board,a number of questions arose duringthe hearing concerning the issue of abandonment and discontinuance of a lawful,pre-existing non-conforming use or structure. For that reason I submit the following, which is largely a recapitualtion of an opinion rendered to the Building Commissioner in July of 2008,supplemented by more recent case law. The Yarmouth By-law provides,in Section 104.3.1, "A5 i•,-Abandonment..A non-conforming use which has been abandoned or discontinued for a period of two(2)years or more shall not be re-established,and any,future use,;;`" shall conform with the By;Law"(emphasis added) 7 I have assumed for purposes of this discussion only, that the Premises became non- conforming in 1971 when the minimum lot size for duplex use was increased under the By-Law. I also assume that the revision to the By-Law(and any subsequent revisions)were lawfully adopted. There is case law,notably Derby Refining Company v Chelsea,407 Mass.703 (1990)and Cape Resort Hotels, Inc.v Alcoholic Licensing Board of Falmouth,385 Mass.205 (1982)which have arguably presented'judicial precedent requiring some affirmative declaration or event bonfirming intention,rather than mere passive non-user,toterminate alawful,pre existing,non •conforming uses; In Derby,the Court noted that: "To constitute an abandonment,the discontinuance of a non-conforming use must result from'the concurrence of two factors, (1)the intent to abandon and(2)voluntary conduct' whether affirmative or negative, which carries the implication of abandonment'7'. [Case cited].Derby;at 708: However,a reasonably succinct,and!believe accurate review of prior law,a similar By-Law provision and a statement elucidating the evolution of what is the current consensus was initially articulated in the Supreme Judicial Court's Opinion in the matter of Ka-Hur Enterprises, Inc. v Zoning Board of Appeals of Provincetown,424 Mass.404(1997)("Ka-Hur-SJC"). In the Ka-Hur- SJC case,the Supreme Judicial Court reviewed some of its own and the Appeals Court's earlier decisions on the matter of abandonment or discontinuance and cited favorably the Appeals Court's earlier opinion inKa-HurEnterprises,Inc.v Zoning Board ofAppeals of Provincetown,40 Mass.Appeal Court 71,(1996)("Ka-Hur-App")which recapped matters as follows: "Prior to the passage of the Zoning Act in 1975, the word 'discontinued' in Zoning Ordinances and By-Laws was interpreted to be the legal equivalent of'abandoned'. [Case a cited]. In Bartlett v Board of Appeals of Lakeville,23 Mass.Appeal. Court. 664,669[505 N.E.2' 193](1987),however,we rejected the notion that the phrase:not used for a period of two (2) years or more' in §6 was the legal equivalent of abandonment requiring a voluntary and intentional relinquishment of the use. In that case, we concluded that a municipality now has two choices for terminating non-conforming uses, one being abandonment and the other a simple cessation of a non-conforming use for a period of at least two years". (Emphasis added).Ka-Hur-App,73. In adding its own imprimatur,the Supreme Judicial Court concluded: "Thus, our statement in Derby Refining should not be read to require an abandonment in order to extinguish a non-conforming use,but rather.as a reaffirmation that abandonment is simply one of the two ways in which a non-conforming use can be extinguished." 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' Si a ° wO '. °0a '"I0 7a o g e bC , n CID eD ' A ti pd. CD tA m � m'OC a Q no yn ' " o m pC •• ,° w 4 +p„p O nto Ci — O . S 1 o a y g .o • ° 9 °ee ° = o ' ° '00 [1E1 ,g a @;C'm. . A O yo neo a0r , . 0 . 0 N 0 •'h ,b pa CD I-44 Mt .P 43SM ° w ON 0n 7 /�0 ^ ° a7p2n ft no O' r0 « w O tOoW rC w O pCr m ^ b q. o ' ° e R. .bii Cy n � w S� a. .. O C,' r 0+, y `< `< ' 1I1 y- 0 • .. n 40 -•CY flit • The Applicant contends that the Applicant inspected the Premises prior to purchasing it in 2001 and determined from its appearances that it was a duplex,two family structure. However,the issue presently before the Board is not whether the Building Commissioner should have applied some equitable principle to ameliorate a self imposed hardship,i.e.the good faith purchase of an unlawful two family dwelling. The issue is,whether or not the Commissioner,when presented with un-rebutted allegations describing an unlawful condition was authorized and empowered to require the Applicant to substantiate the basis upon which the-Applicant, hiS application asserted h e• owneda lawful,pre-existing,nonconforming duplex residentialproperty Whether or not aproperty constitutes a lawful,pre-existing,non-conforming structure or use thereby entitling it to certain grandfather rights is moored in the historical facts with respect to the physical improvements and use of the premises in the context of the applicable Zoning Statute and By-Laws/Ordinance from time to time. • The burden of establishing that apropertyis thebeneficiary of grandfather rights attributable �.� to non-conformity in either use or structure is upon the propertyowner.'Moreis v Board ofAppeals of Oak Bluffs. et als. 62 Mass.Appeals Court 53. 57 814N.E. 2'd 1132, 1136(2004); Chatham v.- Kendrick, 17 Mass.Appeals Court 928. 929 456 N.E. 2's 1151.1152 0983). The Town ofYarmouth Zoning By-Law(Section 101.1)and the General Laws(Chapter 40A, Section 7)designate the Building Inspector as the Zoning Enforcement Oflicer:As such the Zoning Enforcement Officer is required to evaluate applications for Building Permits and analyze the local. fi By-Law and Statute to see ifthe requested activity is permissible thereunder..Ifso a Building Permit-0` should issue;knot,the Building Permit application should be rejected and the Applicant is left to alter his intentions to conform to the By-Law and Statute or file an Appeal from the adverse Decision. Such an Appeal is directed to the Zoning Board of Appeals. The pertinent provisions of Section 7 are as follows: ?If real property has been improved and used in accordance with the terms of the original Building Permit issued by a person duly authorized to issue suchPermits no action,criminal or civil, theeffect or pmupose;of yv_luch is to compel the abandonment, limitation or; modification of the use allowed by said Permit or the removal ;alteration or relocation of any structure erected in reliance upon said Permit by reason of any alleged violation of the provisions of this Chapter, or of any ordinance or By Law adopted theretmder, shall be maintained,unless such action,suit or proceeding is commenced and notice thereofrecorded in the Registry ofDeeds for each county or District in which the land lies within six(6)years' next after the commencement of the alleged violation of law;...". wu Lm u.++krc Ex'ti �..fr'Jr1w14 �.' n w... .u, a en....n .a�br.-mss i. ,• x If the Zoning Enforcement Officer,in his permitting role errs in issuing a Permit when the bets militate against such action, neither he nor the municipality are thereby barred from commencing action to enforce the By-Law if such action is commenced within the Statute of Limitations described in General Laws Chapter 40A,Section 7: The Courts have consistently held that ". .the governmental zoning power may not be,forfeited by the action of local officers in disregard of the statute and the ordinance."FerranlevBoanl ofAppeals ofNonhampton 345 Mass. 10 158. 163. 186 N.E. 2nd 471 (1962),cited in Cumberland Farms,Inc. v Planning Board of Bourne, 67 Mass. Appeal. Court. 67. 851 N.E. 2"d 1108, 1110 (2006) and Whalen v Ellen M. Gifford Sheltering Home Corp.. 344 Mass. 281. 286. 182 N.E.74 503. 507(1962). ;Furthermore, while apparently not yet the subject of the,Commissioner's action, the N1/4,O Commissioner's power to revoke a permit is implicit in the rule consistently articulated by the Courts that the issuance of a permit does not bar enforcement of the By-Law. See Whalen v Ellen M • t D U Gifford Sheltering Home Corp. Id' ' &f o Section 7 also contains a provision establishing a similar 10 year Statute of Limitations but • `b ` that is applicable with respect to situations in which a structure or its use was commenced without t�n " the benefit of a Building Permit issued by a person duly authorized to do so. The Applicant has labored strenuously in the course of the public Hearing to persuade the ,f Board that because an abutting neighbor did not timelytake an Appeal from the issuance of a Building Permit to the Applicant, the Building Commissioner is now somehow barred,from &tscharging his duties pursuant to Section 7, as described above. The Applicant seeks to embellish this position by describing the neighbors dogged efforts to develop the factual history of the Premises and bring such information to the attention of the Building Commissioner. Even if any of this were true,it does not preclude the Commissioner from acting to correct an error discovered as a result of the neighbors research. "Massachusetts Case Law ;y; establishes that laches or estoppel isnot a defense to an action to enforce Municipalities By-Laws or Zoning Ordinances" Cape Resort Hotels, Inc. v Alcoholic Beverages Board of Falmouth, 385 Mass:205 223, 431 N.E..2nd 213:224(1982)and cases cited. Furthermore,such is the case notwithstanding a substantial financial investment in good faith reliance upon prior administrative action. "The right of the public to have the Zoning By-Law properly enforced cannot be forfeited by the action of a [municipalities] officers.t..Buildin Inspector ofLancaster v Sanderson,'372 Mass.. 157, 162, 360 N.E. 2"1051[1977). In the Lancaster case, an individual expended considerable money in the acquisition and development of an airfield for which he had obtained a variance and certain related State approvals. One of the defenses to enforcement of the Zoning By-Law raised by the airfield owner was that the;;: municipality was barred,that is estopped by certain actions and conduct of its own officials from then enforcing the By-Law to the_detriment ofthe property owner The Supreme Judicial Court cited,; with favor its earlier decision in Building Comm'r of Medford v C &H. Co., 319 Mass.273,283, 65 N.E.2"d 537. 543(1946)which observed"the bill is brought to enforce the Zoning Ordinance for the public welfare...and;.the Building Inspector who is,charged with the enforcement of this Ordinance is not estopped by the alleged action of the City or.its officials,nor isthe City itself.', To adopt the Applicant's view and construction of the statutory scheme would render virtually meaningless the authority, indeed the directive, implicit in Section 7 which only bars enforcement action following the issuance of a permit but not until six years have elapsed since the 11 date of such issuance. While the Statute of Limitations with respect to the aggrieved neighbor is a relatively short 30 days,the six year period of Limitations granted to the municipality evidences a clear intent(and recognition by the legislature)that a municipal error should not precipitously bind the community to suffer the consequences of such an error. " " " *•a n. . .. . .. 1 a i. � .a . ..... . . . SAN Case law fairly abounds in support of the proposition that a Building Inspector is not barred from seeking an enforcement action, even though a Building Permit was issued by a person duly authorized to do so,in this case the Building Commissioner. The Applicant would have the Board believe that somehow the Statute bears a gloss which limits its Application to instances of bad faith, fraud or similar malfeasance by the applicant. That clearly is not the case and to the contrary,the Courts of the Commonwealth have upheld the Zoning Enforcement Officer's authority in the face, of good faith and the undertaking and expenditure of considerable funds in reliance upon permits that,/ were issued, only to have them removed in the face of an enforcement.action_ See Building Inspector of Lancaster v George E. Sanderson. 372 Mass. 157.360 N.E. 2sui 1051 (1977).' III. Whether or not the Applicant should be estopped from bringing an Appeal based upon his Application. The Applicant, at the initial stage of this Hearing represented to the Board that he is well versed and experienced in zoning matters,to the extent that he traditionally represents himself and proceeds without counsel.I believe he did suggest that in this case he employed counsel because of concerns that if the matter was decided adversely to him it would precipitate a judicial appeal. As noted above,the Applicant represents that when he viewed the Premises prior to purchase, the improvements constituted a duplex and he relied upon that appearance when he decided to buy the.However,such superficial reliance on appearances is irrelevant to the determination made by the Building Commissioner in the Letter advising the Applicant that no viable grandfather rights attached to the Premises. Nevertheless,and particularly_in view of his professed knowledge,the Board should deem it'noteworthy that in his present application to the Board, the Applicant characterizes the use classification as ".:.existing: single family section 202.5#A1" and the "use classification: proposed:two-Family section 202.5A2':(emphasis:added):In Section 1 of the Application the Applicant does assert that a non-conforming two-family is still valid. While The Applicant now seems to argue that the premises are entitled to treatment as a continuing,lawful,pre-existing,non-conforming two family use and structure,i.e. a"duplex",his own representations in the instant petition belie that position. But was that simply another typographical error? The single instance but is family consistent status asserted by the Applicant in the instant Petition is not an isolated' with his characterization in earlier applications that he has filed with this , Board 12 • A review of Petition Na 3908, dated July 20, 2004 and filed by the Applicant sought a Special Permit for the Premises,to be allowed to construct an addition to an `existing single family home": This 2004 Petition apparently dealt with a modest expansion of the dwelling and was granted when the Board found it would not be more detrimental to the neighborhood" .them(sic) the existing single family home',(emphasis added). The Applicant's testimony at the most recent Hearing confirms that he proceeded,with the blessing of the Special Permit issued in Petition No. 3908, to effect a modest addition to the "...existing single family home". In view of the Applicant's own representations in official documents filed with the Zoning Board of Appeals the Applicant should be estopped and not now be permitted to bring an Appeal based upon allegedly pre-existing non-conforming two family status. IV. Whether the Application Brings the Letter, or Any Appealable Order or Decision Before This Board As An Appeal Under Section 8t General Laws Chapter 40A, Section 8 permits an appeal to this Board by,among others, "...any,person...aggrieved by'an order or decision' of.the inspector of buildings, or'other • administrative official,in violation of any provision of this chapter or any ordinance or by-law adopted thereunder," The Application form affords pre-printed sections to indicate requests for a Variance, a SpecialPermit or reversal of a building inspectors decision.The Application requests only reversal,; -k9.kof a"decision"of the Building Inspector and not either form of zoning relief. .. X--- '-'`70,. The Letter,after reviewing some of the history of the process, including counsel opinions n_'‘ received and relied upon by the Commissioner,concludes with an"order"that the Applicant either that ere was Po se[in duplex !�• "a•.pr ovi de sufficient documentation ej beyond two(2)years or,if unablet do so,g file avarie petition with thepZo g Board Vs Appeals to legitimatize/re-establish the two family use. , Arguably the only two matters that conceivablyconstitute "orders" are,an alternative invitation to eitherp;oduce evidence or file for a variance.Ergo,the question before the Board is not whether the Commissioner has the authority to revoke the existing occupancy certificate,or issue a cease and desist order to discontinue an unlawful duplex use, or to in general commence an enforcement action after issuing a Building Permit.The question(s)is(or are),whether the Board has jurisdiction to order the Commissioner not to request additional information and not,in the ,, alltemative to order the Applicant to file for a vanance The Application formperse,does not refer to the Letter,although a copy of the July.16,2008 document is attached to the Application.Instead the form refers to a decision purportedly made on "7-14-09". The difference in dates between the Letter and the reference set forth in the Application 13 may represent a simple typographical error by the Applicant,who intended to "appeal" from the Commissioner's Letter of July 16,2009 but if there is a written"decision"which is"dated 7-14-09" that the Applicant seeks to have overturned, I would like to reserve the Commissioner's right to address that document when and if it appears in the record of this hearing. Alternatively,the Applicant may be referring to some un-cited yerbal communication with,/ the Commissioner on "7-14-09"wherein he (the Applicant)now alleges that he was ordered, in �w violation of the By-law or statute to take some action which.he feels is unwarranted and is thus appealing from that"order".If there is a verbal"Decision"which was purportedly made on"7-14-,, 09" that the Applicant is seeking to;have overturned, I would like to reserve the Building Commissioner's right to address that"Decision"when and if it appears in the record of this hearing. The record at present is unclear, especially in view of the contents of the Letter, as to just hiwhat decision or order is purportedly being appealed.However,there appears to be nothing before • the Board constituting a cease and desist order,or an order revoking a building permit or occupancy, certificate,or even a cessation of a particular use.' `„koq It may be that in view of the Applicants apparent failure to produce.either,the requested A 1 information to validate the two family use,or an application for zoning relief the Commissioner will Vy Vrks now feel compelled:to commencean enforcement action to compel the Applicant to bring the ✓t' Premises into compliance, that event has not yet occurred Such an even would natirally be anA appealable order.or decision..: Since the Letter itself does not appear to be a"decision"as that term is employed in c.40A, J-9-' Section 8,(See Below,Section IV) any assumption that the Application,stating on its face that the Applicant seeks to overturn a cognizable decision of the Commissioner "dated 7-14-09", was actually intended to address a decision dated 7-16-09 would be speculative.Furthermore,there is no evidence of any order or decision made on July 14,2009. The Board must first determine whether, owing to misidentification or otherwise, the Applicant and Application brings the Letter or some other yet to be identified decision or order into play. Unless and until the Board is able to determine what decision or order has been placed before it,the Board should decline to take any action because it will have no jurisdiction to act.The Appeals Court has held that"...an appeal to the zoning board pursuant to Section 8 has,as a jurisdictional prerequisite,action by an administrative officer."Cumberland Farms,Inc v. Planning Board of Bourne,67 Mass. App. 67, 69, 851 N.E.2nd 1108, 1110 (2006).That requires a formal action by the Commissioner in order to enable the Board to determine whether the substance of the decision by the Commissioner was in violation of the By-law or statute.Such is the reasoning in support of a written decision in response to a request for permit or enforcement. So should it be in the instance of a unilateral inquiry by the Commissioner for information and facts to determine whether an alleged illegality exists. 14 The Letter is not a Decision from which an Appeal maybe taken to the Board of Appeals. 0(If the Commicsioner had issued an order seeking to revoke existing permit or for the Applicant to ` tP' PA ' cease and desist use of the Premises,then such an appeal might lie. Absent that, there being no lawful appeal before the Board,the Matter'should be dismissed Kolodnv. et at v Board o&Appeals of Brookline. 346 Mass. 285. 287-288. 191 N.E. 21'689. 691 (1963). There simply is nothing about the Application which brings the type of decision or order contemplated by Section 8 before the Board. For all of the reasons cited above,the Application should be dismissed,and if not dismissed then denied. aizely, . 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Richard W.Shea,M.D. 4019 Eagle Cove West Dr. Palm Harbor,FL 34685 Re:Edward L.Coughlin Trust n/wtil • Dear Dr.Shea, • • I am responding to your letter ofNovember 1'r concerning tits propertylocated at 143 • River St,South Yarmouth. • • • You have asked me to share with you the basis for my February,2006 letter to Tim Brandolini,Town of Yatmouth Building Commiasioner regarding the apartment at that Location Dating my involvement with this trust,as its administrator,film approiumately 1989 to its teominati.on,Thad the opportunity to engage inmany eon mations with Mr. Coughlin's last two surviving siblings,his sisters,Dorothy O bon and Margaret Refuse. These conversations usually took place during the sumeserI:Eartts when they occupied the River Street property.Gradually,I was Sven a history tut Coughlin family,their • brother,Edward's ownership of the 143 River Street property and their involvement subsequent to his death I was told that the'apartment was built by Edward for the twofold purposes of 1.possibly providing rental income,and,2.prey fling accumnaodations for • friends and relatives who visited,particularly during the summer months.The apartment had separate water anis utilities. became an asset of his trastto beheld and maintained winedEdward the e e ft19a the property continued to,Maze the use of the property maintained for the benefit ofhis siblings.They including the apartment During the 90's,whenever Iwould suggest strutting down the utilities to the apartment,Mrs.Olson and Rafuse would adan Sandy refuse despite the fact that it bad not been occupied for some years.They insisted t;at it should be maintained. 1 with the hope of being used once again.It was not until l997,when they bolls were in• such poor health that their visits to the Cape stopped,that I decided to save trust income and shut down utilities to the apartment Shortly thereatte,vibe:it Wag clear thesidters would no longer be able to use the property,the trustee deckled to sell. • 16 • • • • • • • • • 10s1nPV1PleaAi.]aap?sat&evm V&L°`01010118 PiegX Crr ° _ C1 itaraau`Jtg .sao[,sanb mod swam atgl ISotl I • 'sum'lal.xsl emoaut mon spigot/4 uo pa,todat nogg;AR pylons`Cus}I'otnoou{ielU9g*poop alegoauo ig I sptoonalgSaugtjZaoD alp Btmtaxeas amootn Sfax Jo=own pttg I pions 'I Mko plonbasgns alp Kg ta0m,lede,e741 Jo tan atn 2alpte2er opeut wag ares[plugs=mugogIpadotd alp poutto Ism,aip ammo pouad aql mut w.palazdroutf aq phots iu unwls TM-anunF a at lnauttrode eql Zursn a,2dtaptie ton P3P`saclsotl aqa`am log'luompoda a mum tl,noune'Ajo okay atP O2`rn710l L6615I16 AmtP[01219 PIP I'taior no,i tp gM of 922821 Ata�m4tenag lf5-1 ?t9/880'd 891-1 �aij 92 9l 8892-81-90 Westlaw 505 N.E2d 193 Page 1 23 Mass.App.Ct.664,505 N.E2d 193 (Cite as:23 Mass.App.Ct.664,505 N.E2d 193) C Appeals Court of Massachusetts, Plymouth. Basil W.BARTLETT v BOARD OF APPEALS OF LAKEVILLE et aL FN1.The building inspector of the town. Argued Feb. 12,1987. Decided March 18, 1987. Building owner appealed a decision of town board of appeals which refused to order town's building inspector to issue building permit for use in connection with renovation of three dwelling units in building which previously was a nonconforming use.The Superior Court,Plymouth County,William H.Carey,J.,sustained decision of Court ofAppeals. The owner appealed.The Appeals Court,Grant,J.,held that owner was not entitled to permit. Affirmed. West Headnotes [1]Zoning and Planning 414 X337 414 Zoning and Planning 414W Nonconfonning Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Statute providing that zoning ordinance or bylaw may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more authorizes cities and towns to extinguish otherwise protected nonconforming uses if particular premises are not in fact used for protected purposes for a minimum of two years. M.G.L.A.c.40A,§6. [2]Zoning and Planning 414 X381 • 414 Zoning and Planning 414V111 Permits,Certificates and Approvals . 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 414VIII(A)In General 414k378 Grounds for Grant or Denial 4141681 k.Prior Nonconforming Use.Most Cited Cases Under town's zoning bylaw which provided for continuation of any nonconforming use provided use had not been discontinued for a period of two years or longer,building owner was not entitled to building permit to renovate dwelling units in building,which had been a nonconforming use,where two of three dwelling units had not been used for more than two years. [31 Zoning and Planning 414 0337 414 Zoning and Planning 414VI Nonconforming Uses 4141636 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Zoning and Planning 414 X381 414 Zoning and Planning 414V1II Permits,Certificates and Approvals 414VIII(A)In General • 4141378 Grounds for Grant or Denial 4141681 k.Prior Nonconforming Use.Most Cited Cases Failure to use two of dwelling units in nonconforming use building fora period of more than ten years prior to application ofbuildingpennitto renovate dwelling units constituted an abandonment and justified denial ofgrant ofbuilding permit. **194*664 Daniel E Murray,Middleboro,for plaintiff. Thomas A.Maddigan,Town Counsel,Middleboro,for defendants. Before GREANEY,C.J.,and GRANT and PERRETTA,JJ. *665 GRANT,Justice. • The plaintiffhas appealed from a judgment of the Superior Court which,in effect,sustained a 1984 decision of the board of appeals of Lakeville by which the board refused to order the town's building inspector to issue a building permit to the plaintiff for use in connection with the renovation ofthree dwelling units in a building located in the residence zoning district of the town.The questions for decision are the proper construction(I)of the third paragraph of CIL.c.40A,§ 6,as appearing in St.1975,c.808, §3,which provides that"[a]zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more,"and(2)of§V(a)of the Lakeville zoningby-law,as amended in 1978,which provides inpertinentpartforthe continuation ofany nonconforming use of a building or land"provided such use has not been discontinued for a period of two years or longer." The case was submitted to the Superior Court on a statement of agreed facts which may be summarized as follows.In 1959,atthe time of the adoption of the first zoning by-law in Lakeville,the building in question contained three dwelling units,all of which were occupied.The by-law did not permit three-family dwelling units in the residence zoning district in which the property was placed.The property was protected by the nonconforming use provisions of the 1959 by-law, ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 which were the same as the present provisions already quoted except that they concluded with words such as"one year or longer"rather than the present"two years or longer."In 1962 the property was acquired by a couple by the name of Ryan,who occupied one of the units and let the other two out to tenants until Mr.Ryan died,some time in 1973.Mrs. Ryan continued to live in the unit formerly occupied by herself and Mr.Ryan until the time of her death in 1983.The unit in which she lived has been unoccupied since her death.The other two units have been unoccupied"from and after approximately January 1,1974."The statement of agreed facts also contains the following:"Mrs.Ryan's health steadily declinedfor several years until her death Her ability to maintain and manage the house was substantially impaired because of declining health. Because*666 of her declining health Mrs. Ryan was unable to rent the premises or to physically alter or eliminate the apartments"(emphasis supplied). In 1984,the plaintiff,as the present owner of the property,applied to the building inspector of the town for a building permit for use in connection with the renovation of all three dwelling units.The zoning by-law still forbids three-family dwelling units unless they are protected by the nonconforming use provisions of the by-law,and the building inspector denied the application.The plaintiff appealed to the board of appeals under CIL.c.40A,§8,as appearing in St.1975, c.808,§3.The board attributed to the words"discontinued for a period of two years or longer"in the amended**195 by-law the same meaning as the words"not used for a period of two years or more"in the present G.L.c.40A,§6,and sustained the action of the building inspector."That action prompted the plaintiffs appeal to the Superior Court under CIL.c.40A,§ 17,as amended through St 1982,c.533,§ 1.As already noted,a judge of that court sustained the board's decision. FN2.A copy of the board's decision was attached to the complaint,as required by CIL.c.40A,§ 17,and that copy has been reproduced in the record appendix.Copies of other documents similarly attached have not been reproduced.The parties stipulated in writing that"[n]o exhibits attached to the complaint shall be evidence in the case."We think it clear from counsel's response to the judge's opening inquiry as to the meaning of the . stipulation that there was no intention of blinding the court to the contents of the very decision which was to be scrutinized under§ 17. 1.A carefid review of the legislative history of the provisions of the third paragraph of the present G.L.c.40A,§6,leads to the conclusion that the board's construction of the amended by-law is correct.The first grant of legislative authority to cities and towns outside Boston to adopt zoning ordinances and by-laws is found in St. 1920,c.601 ("An Act to authorize cities and towns to limit buildings according to their use or construction to specified districts"), §7,which provided that"[t]his act shall not apply to...the existing use of any building,but it shall apply to any alteration of a building to provide for its use for a purpose,or in a manner,substantially*667 different from the use to which it was put before the alteration.""u'That language found its way into G.L.(1921)c.40,§29,without any change of substance. With the slight changes effected by St.1925,c. 116, § 3,the language was carried to CIL.(Ter.Ed.)c.40, § 29.The zoning enabling legislation was extensively rewritten by St.1933,c.269("An Act revising the municipal zoning laws"), § 1.The subject of nonconforming uses resurfaced in a new G.L.c.40,§26,"the second sentence of which provided that"[s]uch an ordinance or by-law may regulate non-use of non-conforming buildings and structures so as not to unduly prolong the life of non-conforming uses.""In that language is found the first legislative grant of authority to cities and towns outside Boston to extinguish nonconforming uses.The quoted language persisted until the effective date of the present CIL.c.40k§6."See St. 1952,c.438;CIL.c.40A,§5,as appearing in St.1954,c.368,§2;St.1962,c.340; St.1969,c.572. FN3.See Inspector of Buildings of Burlington v.Murphy, 320 Mass.207,209,68 N.E.2d 918(1946). • FN4.See LaMontagne v.Kenney,288 Mass.363,368,193 N.E.9(1934).. FNS.See PlanningBcL of Reading v.Board ofAppeals of Reading 333 Mass.657,658-659,132 N.E.2d 386 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 (1956). FN6. Unless sooner accepted by a particular city or town,the provisions of GL. c. 40A, as appearing in St.1975,c.808,§3,and as amended(in respects not here material)by certain of the provisions of St.1977,c. 829,took effect in every city and town except Boston(as to which see Emerson College v.Boston,393 Mass. 303,306-309,471 N.E.2d 336[1984])on July 1, 1978.See Casasanta v Zoning Bd of Appeals of Milford 377 Mass.67,72-73,384 N.E.2d 1218(1979);Shalbey v.Board of Appeal of Norwood 6 Mass.App.Ct.521, 526-527,378 N.E.2d 1001 (1978). It became the fashion for cities and towns,acting under the foregoing authorization,to adopt ordinances and by-laws directed to the extinguishment of nonconforming uses which spoke in terms of"discontinuing"such a use for a stated period.In the first case involving such an ordinance to reach the Supreme Judicial Court it was concluded,after a review of authorities in other jurisdictions,that"discontinued"should be considered the equivalent of"abandoned."Pioneer Insulation&Modernizing Corp.v.Lynn,331 Mass.560,565, 120 N.E.2d 913(1954).*668 The court said:"Hence it uniformly has been stated-and rightly we think-that the discontinuance of a nonconforming use results from the concurrence of two factors,(1)the intent to abandon and(2)voluntary conduct,whether affirmative or negative,which carries the implication of abandonment.Thus nonoccupancy of the premises and suspension or cessation of business **196 due to causes over which the owner has no control do not of themselves constitute a discontinuance;and lapse of time is not the controlling factor,although it is evidential,especially in connection with facts showing an intent to discontinue the use."Id The equivalence of"discontinued"and"abandoned"has been perpetuated.See,e.g.,Dobbs v.Board of Appeals of Northampton, 339 Mass.684,685,686,162 N.E.2d 32(1959);Medford v.Marinucci Bros. & Co.,344 Mass.50,60&n.1,181 N.E.2d 584(1962);Cape Resort Hotels,Inc v Alcoholic Licensing Bd of Falmouth, 385 Mass.205,220-221,431 N.E.2d 213(1982),Id,388 Mass.1013,446 N.E.2d 1070(1983).'See also Cities Sent Oil Co.v.Board of Appeals of Begord 338 Mass.719,724, 157 N.E2d 225(1959). FN7.We acknowledge that the Cape Resort Hotels case was decided well after the effective date of the present GL. c. 40A, § 6. A perusal of the original papers in the appeal in that case (see Flynn v Brassard 1 MassApp.Ct 678,681,306 N.E.2d 446[1974],Id,4 Mass.App.Ct.795,344 N.E.2d 220[1976])discloses that the court was not asked to consider the question discussed in this part of our opinion. We think this case presents a proper occasion to consider whether the language of the third paragraph of the present GL. c.40A, § 6,countenances the further perpetuation of the equivalence of"discontinued"and"abandoned"in zoning ordinances and by-laws."It will be remembered that§6 now provides that"[a]zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more."By this language the Legislature has,for the first time,provided express criteria which can be employed by cities and towns outside Boston*669 that may be desirous of extinguishing nonconforming uses.There are two,and only two,criteria; they are distinctly stated in the disjunctive;but a city or town may employ either or both.The first criterion is the familiar "abandonment"on which the cases have concentrated ever since the decision in the Pioneer Home Insulation case in 1954.As the decided cases show,an abandonment is something that can happen momentarily,without the lapse of any stated period of time.See,e.g.,Dawson v.Board of Appeals of Bourne, 18 Mass.App.Ct.962,963,469 N.E.2d 509 (1984),which is discussed in note 8 hereof. FN8.This question lurked in the record in Dawson v.Board of Appeals of Bourne, 18 Mass.App.Ct.962,469 N.E.2d 509(1984),but was not reached because the by-law was framed in the disjunctive and the evidence required a finding that the nonconforming use as a nursing home had been abandoned when the owners of the premises surrendered their license to operate the home. [1]The other criterion in the new§6 is"not used for a period of two years or more."That language,taken on its face, appears to contemplate a simple cessation of a nonconforming use for a period of at least two years.lfthat is the meaning 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 • properly attributable to the phrase,then the Legislature has authorized the use of an objective standard which is easily understood by the public and easily administered by building inspectors and boards of appeal.If,on the other hand,we are to read into the phrase a requirement of voluntary or intentional action on the part of the owner of nonconforming premises amounting to,a traditional"abandonment,"such as has been done in the past with the word"discontinued," then the Legislature must be taken to have indulged in a tautology:the statute would have to be read as authorizing cities and towns to regulate nonconforming uses which have been"abandoned or abandoned fora period of two years or more." We reject any such construction as unreasonable.We think the Legislature,by its choice of the second criterion in§6, 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. FN9.The usual lexical definitions of"discontinue"do not embrace any concept of specific intent on the part of the person who discontinues something.See,e.g.,Webster's New International Dictionary(2d unabridged ed.1949),which gives the following definitions:"To interrupt the continuance of;to intermit,as a practice or habit;to put an end to;to cause to cease;to cease using;to give up." **197 [2]*670 The proper construction of the present G.L.c.40A, § 6,assumes a very real significance once it is understood that a city or town cannot adopt a new or amended zoning ordinance or by-law which conflicts with pertinent enabling legislation of general application.Planning Bel of Reading v. Board ofAppeals of Reading 333 Mass.657, 660, 132 N.E.2d 386 (1956),and cases cited.In addition,the 1978 annual town meeting in Lakeville was under a legislative imperative to modify its zoning by-law in such fashion as to bring it into conformity with the provisions of the new Cil..c.40A not later than July 1,197SPu See the second paragraph of St.1975,c.808,§7,inserted by St.1977, c.829,§4.In the circumstances,the town meeting must be taken to have done more than simply enlarge from one year to two the period of time necessary for the extinguishment of a nonconforming use.The town meeting had a choice of adopting either or both of the criteria set out in the new§6.We think the meeting,by not referring to the"abandonment" criterion,by leaving undisturbed the word"discontinued,"and by inserting immediately thereafter the words"for two years or longer,"opted for the simple,objective criterion"not used for two years or more." FNIO. It was agreed at argument that the 1978 amendment of§ V(a)of the Lakeville zoning by-law was • adopted at the 1978 annual town meeting,which necessarily preceded the July 1,1978,effective date of the new GL.c.40A(supra,note 6).See G.L.e.39,§9. We conclude that the board of appeals was correct in equating the language of the by-law with that of the cognate provision of the statute.As two of the three dwelling units in question had not been used for more than two years,a building permit was properly refused. [3]2.The case was submitted to the Superior Court,was decided by that court,and was briefed in this court on the traditional question of abandonment/Nit The trial judge,in his memorandum of decision,was obviously disturbed by ' the fact that two of the dwelling units had not been used for more than*671 ten years prior to the application for a building permitFN12 He noted the portion of the statement of agreed facts which dealt with Mrs.Ryan's declining health and consequent inability to let the premises out following the death ofher husband which has already been quoted(supra, at 194).That portion of the statement has to be read with some care.It recites that Mrs.Ryan's health"steadily declined for several years until her death"in 1983 (emphasis supplied).The statement does not disclose when the decline commenced,with the result that there could have been a considerable period of years following the agreed date of January 1,1974,during which Mrs.Ryan could have let the other two dwelling units out if she had been disposed to do so. FN11.Counsel agreed at argument that they had discussed the possibility that this case might go off on the ground discussed in part one of our opinion. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 • FN12.1n the Dobbs case,339 Mass.at 686,162 N.E.2d 32,the court calculated the four-year period of nonuse under consideration there to extend to the date of the hearing in the Superior Court. In this case, such a calculation would have yielded a period of nonuse of eleven years and more than eight months. . In reality,the plaintiff who had the burdens of proof and persuasion on the questions of intent and inability as they related to a possible abandonment(see Dion v.Board of Appeals of Waltham,344 Mass.547,555-556,183 N.E2d 479 [1962];Bridgewater v. Chuckran,351 Mass.20,24,217 N.E.2d 726[1966];Framingham Clinic Inc v.Zoning Bd of Appeals of Framingham,382 Mass.283,297,415 N.E2d 840[1981]; Warren v.ZoningBd of Appeals of Amherst, 383 Mass. 1,10,416 N.E2d 1382[1981];Cape Resort Hotels,Inc.v.Alcoholic LicensingBd of Falmouth,385 Mass. at 212,431 N.E.2d 213;Martin v.Board of Appeals of Yarmouth,20 Mass.App.Ct.972,972,482 N.E.2d 336[1985]: contrast Brotherhood ofAlpha Upsilon,Inc v.Zoning Bd ofAppeals ofBridgewater, 15 Mass.App.Ct.**198 991,992, 448 N.E.2d 69 [1983] ), did not give the judge much to work with. In the circumstances, we cannot fault him for attaching primary miportance to the period of more than ten years during which the disputed units had not been used and in concluding that there had been an abandonment of the nonconforming use so far as those units were concerned.What happened here is nothing more than what was first envisaged in the Pioneer Insulation case,331 Mass.at 565, 120 N.E.2d 913,and later adumbrated in the Dobbs case,339 Mass.at 686-687, 162 N.E2d 32. *672 3.The plaintiff also argues that he cannot be deprived of a building permit because§V(a)of the Lakeville by-law, unlike some other nonconforming use by-laws which have been considered by the courts,does not expressly prohibit the reestablishment of such a use once ithas been extinguished. See,e.g.,the Pioneer Insulation case,331 Mass.at 561-562,120 N.E.2d 913.The essential predicate of the argument is that§V(a)is the only portion ofthe by-law bearing • on the extinguishment of nonconforming uses.The predicate is shaky.It is not at all uncommon to find provisions in other parts of zoning by-laws which control ones such as§V(a)by providing,often in the preface to a table ofuses,that no property in the town shall be used except for a purpose expressly permitted by the by-law.Indeed,it appears from the statement of agreed facts in this case that"three family dwelling units were and are not allowed by the initial and[sic ]amended...Lakeville[z]oning[b]y-law"We have not been given any part of the by-law other than§V,and we cannot take judicial notice of what any other part may provide. Warren v.Zoning Bd of Appeals of Amherst, 383 Mass.at 8, 416N.E.2d 1382.Brotherhood ofAlpha Upsilon,Inc v.ZoningBd ofAppeals ofBridgewater, 15 Mass.App.Ct.at 991, 448 N.E.2d 69.The whole notion of reestablishing an extinguished nonconforming use is repugnant to the concept embodied in the proviso of§ V(a).If,as matter of fact,there is some other part of the by-law which supports the plaintiffs position,there has been a failure of proof on the point. Judgment affirmed END OF DOCUMENT 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 Supreme Judicial Court of Massachusetts,Barnstable. CAPE RESORT HOTELS,INC. v. ALCOHOLIC LICENSING BOARD OF FALMOUTH et aL[FNI] FN 1.The other defendant is the building inspector of Falmouth. (and a companion case[FN2]). FN2.Falmouth Heights-Maravista Improvement Association&others vs.Robert Johnson&another.The other plaintiffs are twelve named individual residents of the town of Falmouth;the other defendant is Cape Resort Hotels,Inc. Argued Oct 8, 1981. • Decided Feb.5, 1982. In first action hotel sought declaratory judgment establishing its right to serve liquor without food or with hors d'oeuvres only and to offer live entertainment in certain section of its main building and in second action,12 residents of town and association of residential property owners where hotel was located sought to enjoin present operation in building and two related buildings on ground that use ofbuilding was in violation ofrelevant sections of zoning bylaw and also sought order directing building inspector to enforce zoning bylaw.The Superior Court,Travers,J.,consolidated cases for trial and found certain uses were impermissible extension or changes of prior nonconforming use,and hotel and association appealed.The Supreme Judicial Court,Lynch,J.,held that:(1)current operation of hotel was no longer protected by zoningbylaw as valid continuation of 1926 nonconforming use;(2)building permits and variance granted to prior owners of hotel did protect show lounge currently occupying space of former frolic room;(3)permission to operate present ground floor facilities could not be implied from variance from parking lot granted to prior owners;(4)use of annex to house hotel guests was change in prior nonconforming use and would not be permitted by bylaws;and(6)injunctive relief granted was overly broad. • Reversed and remanded. West Headnotes Eli Zoning and Planning 414 x'328 414 Zoning and Planning 414W Nonconforming Uses 414k328 k.Particular Cases as Involving Change of Use.Most Cited Cases Where hotel was at one time a full-service resort hotel whose primary purpose was to provide lodging,meals and ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 entertainment for overnight guests and in recent years,management has presented hotel to public as largest entertainment complex on Cape Cod and hotel had been built as three clubs under one roof with aim of attracting public in large numbers,and where current use of hotel property had effect on neighborhood"different in kind"from effect of prior use, operation of hotel was a change in use so that current operation of hotel was no longer protected under zoning bylaw as valid continuation of 1926 nonconforming use.M.G.L.A.c.40A,§6. [2]Zoning and Planning 414 X327 • 414 Zoning and Planning 414W Nonconforming Uses 4141627 k.Continuance or Change of Use in General.Most Cited Cases Where show lounge currently occupying space of prior frolic room was being used for same purpose as its predecessor, i.e.,afternoon"happy hours"and dancing,drinking,and entertainment in the evening,space was"used in accordance with the terms of the original building permit"and thus,was in accordance with permit granted previous owners and passage of over six years since use allowed by these permits barred action to limit current use of frolic room;however, fact that open portion on ground floor was enclosed pursuant to 1956 building permits and for purpose of enlarging inside floor area did not protect entire present use of hotel's ground floor. [3]Zoning and Planning 414 x'546 414 Zoning and Planning 414IX Variances or Exceptions 414IX(B)Proceedings and Determination 414k546 k.Effect of Determination.Most Cited Cases Permission to operate present ground floor facilities in hotel used primarily for entertainment could not be implied from variance for parking lot granted to prior owner of hotel in 1969 by town board of appeals.M.GLA.c.40A,§6. [4]Zoning and Planning 414 X336.1 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 4141336.1 k.In General.Most Cited Cases (Formerly 4141336) Under town zoning bylaw to effect that when a nonconforming use has been discontinued for period of one year,it shall not be reestablished,the word"discontinued"is the legal equivalent of"abandoned." [5]Zoning and Planning 414 C=336.1 414 Zoning and Planning 4 14V Nonconforming Uses 4141336 Discontinuance or Abandonment 4141336.1 k.In General.Most Cited Cases (Formerly 414k336) 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 An abandonment of nonconforming use results from concurrence of intent to abandon and vohmtary conduct which carries implication of abandonment. [6]Zoning and Planning 414 X336.1 414 Zoning and Planning 414V1 Nonconforming Uses • 4141336 Discontinuance or Abandonment 4141336.1 k.In General.Most Cited Cases (Formerly 4141336) Sale of property protected as nonconforming use does not by itself establish an abandonment of that use. [7]Zoning and Planning 414€336.1 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 414036.1 k.In General.Most Cited Cases (Formerly 414k336) Where lodge bad at all times been used for commercial housing of guests,there was no discontinuance ofnonconforming use so that lodge would lose its protection as nonconforming use under town zoning bylaw,notwithstanding change within ownership. [8]Zoning and Planning 414 X338 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 4141338 k.Change of Use.Most Cited Cases Where annex to hotel had been used as dormitory for hotel employees and was now used as accommodations for paying guests ofhotel,prior nonconforming use of annex was lost by abandonment and current use to house guests of hotel was in violation of town zoning bylaws. [9]Zoning and Planning 414 0762 . 414 Zoning and Planning • 414X1 Enforcement of Regulations 414X1(A)In General 4141062 k.Defenses to Enforcement.Most Cited Cases Even where it has been a substantial financial investment, lathes or estoppel is not defense to action to enforce municipalities'bylaws or zoning ordinances. 1101 Zoning and Planning 414 X762 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 414 Zoning and Planning 414X1 Enforcement of Regulations 414X1(A)In General 414k762 k.Defenses to Enforcement.Most Cited Cases Where neither dramatic changes in nonconforming use of hotel's ground floor space nor changes of annex were specifically approved by official charged with enforcing town zoning bylaws,laches and estoppel provided hotel with no defense to enforcement of zoning bylaws. 1111 Zoning and Planning 414 C'790 414 Zoning and Planning 414X1 Enforcement of Regulations 414X1(B)Injunction Against Violation 4141(790 k.Trial,Judgment,and Relief.Most Cited Cases Injunction enjoining hotel"from using those portions of ground floor facilities known as the Disco Room***the Pub, and the Game Room for the purposes ofsell ngorproviding alcoholic beverages,providing live entertainment,providing recorded music and dancing,and providing coin operated machines such as pinball machines and billiard tables"as changes in prior nonconforming use was overly broad inasmuch as when hotel became nonconforming use,drinking, music,and dancing were offered to some extent in some of areas covered by injunction. **214*206 Michael D.Kelly,Watertown,for Cape Resort Hotels,Inc. Edward W.Kirk,Falmouth(Edward W.Farrell,Town Counsel,Falmouth,with him),for Falmouth heights Maravista Improvement Ass'n and another. Before*205 HENNESSEY,C.L,and WILKINS,LIACOS and LYNCH,JJ. LYNCH,Justice. This appeal involves the legality,as a nonconforming use under the zoning by-law ofthe.town ofFahnouth,of the current operation of a resort facility located in that town.The facility is owned by Cape Resort Hotels,Inc.(Cape Resort),and is known as the"Brothers Four."The appeal consists of two actions which were consolidated for trial.In the first action, Cape Resort seeks a declaratory judgment establishing its right to serve liquor without food or with hors d'oeuvres only and to offer live entertainment in a certain section of its main building.In the second action,twelve residents of Falmouth and an association of residential property owners from the Falmouth Heights area of Falmouth where the Brothers Four is located(hereinafter collectively'mown as"the association")seek to enjoin the present operation of the main building and two related buildings on the ground that the use of these buildings is in violation of relevant sections of the zoning by-law.The plaintiffs in the second action also seek an order directing the building inspector of Falmouth to enforce the zoning *207 by-law with respect to Cape Resort's facility. The building inspector included in his answer a cross-complaint against Cape Resort**215 by which he seeks to enjoin Cape Resort from operating the Brothers Four and its outbuildings in a manner which violates the zoning by-law.[FN3] FN3.It could be argued that the Superior Court lacked jurisdiction to hear the action brought by the Falmouth residents and neighborhood property owners. See McDonald's Corp. v. Seekonk, — Mass.App. —, 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 Mass.App.CtAdv.Sh. (1981) 1508, 424 N.E2d 1136; William C. Bearce Corp. v. Building Inspector of Brockton,—Mass.App.—,Mass.App.Ct.Adv.Sh.(1981)286,416 N.E2d 509;Neuhaus v.Building Inspector of Marlborough,—Mass.App.—,Mass.App.Ct.Adv.Sh.(1981)161,415 N.E2d 235. It seems clear,however,that a landowner in doubt about the propriety of the use of his property under a zoning by-law may seek declaratory relief(as Cape Resort did in the first action)without making a demand on the building inspector under G.L.c.40A,s 7.Furthermore,since the answer of the building inspector in the landowners'action and his cross-complaint in the second action sought a judicial determination of the rights of Cape Resort under its nonconforming use and requested that Cape Resort be enjoined from engaging in any act in violation of the Falmouth zoning by-law,all issues raised in the second action are properly before us and it is,therefore,unnecessary to reach the issue of the right of the neighbors to maintain their action.It should be noted that this issue of the neighbors'right to maintain an action in their own names is not argued before us and apparently was not pressed in the Superior Court. A judge of the Superior Court heard oral testimony,reviewed written evidence,and took a view of the hotel premises. He made extensive findings of fact on the past and present operation of the buildings owned by Cape Resort.He then held that(1)the current use of the ground floor facilities of the Brothers Four was an impermissible extension or change of a prior nonconforming use,(2)the use made of that portion of the ground floor known as the"frolic room"was nevertheless protected by the provisions of G.L.c.40A,s 7,(3)the use of a building called the"lodge"was a lawful prior nonconforming use,and(4)a building known as the"annex"could lawfully be used to house employees of the hotel but not to lodge hotel guests.The judge found both mandamus and injunctive relief to be appropriate.Both Cape Resort and the association have appealed.We*208 find no error in the judge's rulings but remand for reconsideration of the scope of the injunctive relief granted. We review the facts concerning the main building of Cape Resort's facility(hereinafter"the hotel")as found by the judge. Facts relative to the buildings known as the"lodge"and the"annex"will be outlined in our discussion of the legal issues raised by their use. The hotel was built before the turn of the century and was known,until relatively recently,as the"Terrace Gables:'It is located in the Falmouth Heights section of Falmouth.Falmouth Heights was originally a neighborhood of mostly single-family summer homes with a smattering of summer hotels.While there are still many private homes,the area now includes a significant number of guest houses and rental properties,some of which have been rented in recent years to groups ofunrelated persons.From 1926,when zoning was adopted in Falmouth,until the mid-1950's the Terrace Gables functioned as a traditional,full-service summer resort hotel for a mostly middle-aged and older clientele.Guests were met at the train or bus station by hotel personnel and stayed at the hotel for periods ranging from a week to the entire season.The ground-floor layout included a dining room,kitchen,lobby and reading area,sitting and television room, and porch.There were also a few guest rooms behind the lobby.The hotel offered three meals a day on an American or European plan. The dining room was also open to the public.A wide variety of food was cooked and served on the premises.Guests were required to"dress"for dinner.There were no separate bars or cocktail lounges,although drinks were available in the dining room[FN4]at tables and at a small bar on one side of the dining room.A piano player or trio occasionally provided music during the dinner hour.A range of entertainment was provided in the**216 evenings. These activities,including cards,bingo,and movies,were generally concluded by*209 10 P.M.After the dinner hour most ofthe people on the hotel property were hotel guests.The hotel occasionally sponsored dances and concerts which would run until 1 A.M.Cocktails were available at these functions and the public was welcome.The hotel served as"a center of social life on the Heights?' FN4.There was no allegation that the hotel has not always had the proper liquor licenses (except during 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 prohibition when no licenses were issued). • The 1950's and 1960's were a period of transition for the hotel.There was a change in management and more advertising to encourage nonguests to patronize the hotel for dining,dancing,cocktails,and entertainment.The effort to attract the public was also reflected in changes made in the physical layout.In the early 1950's,a small cocktail lounge was built from a part of the dining room.In 1954,the outside porch was enclosed to create additional interior space.The former reading area became a coffee shop in 1960 and lunch was no longer served in the dining room.The hotel moved to a modified American plan for food.A cocktail lounge called"club 46"was opened.It offered a"happy hour"and music and dancing on weekends until midnight.In 1962,the ground-floor guest rooms were removed,the coffee shop was converted into a cocktail lounge,club 46 was closed,and a new"frolic room"was created and later enlarged.The judge found that the frolic room became"the principal focus of entertainment for guests and the public." Large numbers of young people came to the frolic room for a late afternoon"happy hour" and for dancing and entertainment in the evening.Traffic and parking problems developed and there was a significant amount of noise at closing time.A variance was granted in 1969 for the creation of a parking lot.A fee was charged to all except guests of the hotel.In 1970,there was another change in management.The clientele attracted to the hotel became increasingly younger and control problems increased. • The current management,Cape Resort,bought the hotel in 1971.With very few structural changes,Cape Resort has developed the hotel's entertainment offerings to such an extent that it describes the hotel in its advertising as"the largest *210 entertainment complex on Cape Cod"and"Three Clubs under One Roof."The"three clubs"are the"pub,"the "show lounge,"and the"disco."The pub(in what was once the reading area)has a bar,jukebox,games,and live music in the evenings.It can accommodate 89 people and is open until 1 AJvL The show lounge is the former frolic room.In 1979-1980,it was only open on weekends.It has two bars,a dance floor,and a stage and can hold 382 people.The show lounge features entertainment,musical groups,and dancing.The disco is what was once the dining room.It has a dance floor and three bars and features complex light displays and sound equipment controlled by a"disc jockey."Three hundred and sixty-four people can be accommodated for dancing and drinking.Under the name"club car"the disco is open in the morning for breakfast and in the evening for light food.The ground floor also contains a"game room"with electronic games,drinks,and room for forty-eight people. In addition to the regular schedule of entertainment,the management advertises a variety of special events including, for example, summer Halloween and New Year's Eve parties,"beat the clock"nights during which drinks become progressively more expensive,and audience participation shows such as a"gong show,""creative goldfish eating"and pie eating contests,and talent shows,for which the winners are awarded prizes.Tickets for these special events are distributed at closing time and on the beaches during the day. The judge made factual findings on parking facilities,number of employees, and the income generated by the hotel. These figures show that there are an estimated 104 to 175 parking spaces available for over 100 guests, 40 to 60 employees,and a potential holiday weekend crowd of over 800 people.As very little parking is allowed on neighborhood streets,there have been some problems with patrons parking on private land.Information on the distribution of hotel employees**217 suggests that the bulk of them are employed as waiters,waitresses,and bartenders.Only four or five are employed to prepare food.The income figures for the*211 years 1971-1977 show steadily increasing revenues overall but steadily decreasing revenues from room rentals.[FN5]In each year from 1971 to 1977 for which appropriate figures are available,charges for liquor and admission accounted for sixty to eighty percent of the overall revenues generated by the hoteL Prices for food, drinks, and admission have increased much faster than charges for rooms, although the judge took note of the fact that the rooms are old-fashioned,and low rates may be necessary to achieve an acceptable occupancy rate. FNS.As the judge pointed out,at the occupancy rate and room charges named by Cape Resort,the revenue 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 • from room rentals should have been much higher than it actuallywas.This discrepancy led the judge to question whether the hotel aspect of the operation was being deliberately maintained despite its limited financial return or even whether the income figures bad been rearranged to conceal how unprofitable certain aspects ofthe hotel operation had become. • Finally,the judge found that complaints generated by the operation of the Brothers Four related primarily to noise at closing time,especially on weekends,and parking problems.Although management has made efforts to control the crowds,closing time is frequently marked by loud talk,laughing,some fights,and considerable traffic noise.Thus,even though control problems are less severe than they were in the 1960's,neighbors are still sometimes awakened or kept awake until 2 or3 A.M.These problems are affected by the fact that the neighborhood contains two establishments which attract a clientele similar to,although smaller than,that of the Brothers Four.Guest houses in the area also add to the general outdoor activity. [1] 1. Ground-floor hotel entertainment facilities. All parties, and the judge, agree that in 1926 the hotel was a nonconforming use under the original Falmouth zoning by-law.[FN6]Therefore,as a prior nonconforming use,the hotel is*212 not in violation of the by-law.[FN7]The primary question presented by these appeals is whether there has been such a"change or substantial extension"of that use that the current operation of the hotel is no longer protected under G.L.c.40A,s 6,ands 18 of the Falmouth zoning by-law,as a valid continuation of the 1926 nonconforming use.We agree with the judge that there has been such a change. FN6.Cape Resort and the association stipulated that,at all times between 1926 and the present,the hotel has been located in an area zoned residential.The record does not reveal the exact manner in which the hotel failed to conform to the 1926 by-law. FN7.Section 18 of the Falmouth zoning by-law reads as follows:"Non-Conforming Uses.(a)Any building, part of a building or premises which,at the time of the adoption ofthis by-law,is being put to a non-conforming use may continue to be used for the same purpose?Zoning By-Laws of the Town of Falmouth,s 18(amended through July 1, 1975). Bridgewater v.Chuckran, 351 Mass.20, 217 N.E.2d 726 (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.... (3) Whether the current use is 'different in kind in its effect on the neighborhood.' " (Citations omitted.)Id. at 23,217 N.E.2d 726, quoting from Massachusetts Broken Stone Co. v. Weston,346 Mass.657,662, 195 N.E.2d 522(1964),and Medford v.Marinucci Bros.&Co.,344 Mass.50,60, 181 N.E2d 584(1962).The property owner bears the burden ofproving the requisite similarity between the current use and the original nonconforming use.Bridgewater v.Chuckran,supra 351 Mass.at 24,217 N.E2d 726.The facts found by the judge support his conclusion that the current use of the hotel satisfies none of the three standards. The nature and purpose of the use made of the hotel's facilities have changed dramatically.In 1926,the property was operated**218 as a full-service resort hotel whose primary purpose was to provide lodging,meals,and entertainment for overnight guests.In recent years,by contrast,management has presented the hotel to the public as"the largest entertainment complex on Cape Cod."The hotel has been billed as"Three Clubs under One Roof'with the aim of attracting the public in large numbers.The change is comparable*213 to that in Bridgewater v.Chuckran,supra,where property formerly used in connection with a house building business became the site of a concrete manufacturing and supply business.This court found a change in the nature and purpose of the use where the mixing of concrete had been ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 transformed from a"merely incidental"aspect of the general construction business to a major enterprise in which the sale of concrete to others dominated.Id.351 Mass.at 23,217 N.E.2d 726.In Wellesley v.Brossi,340 Mass.456,164 N.E2d 883(1960),the prior nonconforming use of the property in question was the incidental storage of materials and equipment in connection with the residenfs parttime masonry work.The court found that the storage of a large amount of material in connection with a fulltime masonry and general building business was not a continuation of,but rather a change in the character and purpose of,the prior nonconforming use.Id.at 465,164 N.E.2d 883. In the case now before us,lodging and meals have been supplanted as the dominant business of the hotel by fully developed entertainment facilities designed especially to attract crowds of young people.The judge's description of the current situation is apt"this enterprise is much less a hotel with entertainment facilities present for its guests and the public,than it is an entertainment complex with some guest rooms." A comparison of the 1926 and current uses of the hotel demonstrates a fundamental difference in"the quality or character,as well as the degree,of use."Bridgewater v.Chuckran,supra 351 Mass.at 23,217 N.E.2d 726.The same space which formerly housed a dining room,reading room,guest rooms,and lobby now houses seven bars distributed among three"clubs"and a game room.A kitchen equipped to prepare large quantities of food for diners who ate in the dining room has been scaled down to a small,short-order operation not much greater than that found in many households and staffed by only three or four employees.A predominately middle-aged and older clientele has been displaced by young people who are encouraged to patronize the hotel for its bars and nightlife.While the hotel has always served*214 liquor,it was formerly served only in the dining room and at occasional dances.Now the sale of liquor accounts for sixty to seventy percent of the hotel's revenues and is a central focus of the hotel's entertainment facilities.While hotel guests and the public were offered bingo,cards,motes,and dances in the lobby in 1926,today's guests are offered a choice among three nightclubs.Changes far less drastic than these have been held to constitute impermissible differences in quality.See,e.g.,Jasper v.Michael A.Dolan,Inc.,355 Mass.17,242 N.E2d 540(1968)(change from sale of beer and wine in connection with food store to sale of all alcoholic beverages in separately-conducted package store);Hinves v. Commissioner of Pub.Works of Fall River,342 Mass.54,172 N.E.2d 232(1961)(catering service involving cooking and preparation of food is use different in quality from operation of a grocery store). Cape Resort's reliance on the rule that a mere increase in the volume of business done does not constitute a change in use is misplaced.While it is true that a use is not different in kind simply because it is bigger,Building Comm'r of Medford v.McGrath,312 Mass.461,462,45 N.E2d 265(1942),the increased use must be attributable to growth of the original nonconforming use in order to fall within the rule.Kreger v.Public Bldgs.Comm'r of Newton,353 Mass. 622, 627, 234 N.E.2d 283 (1968). Even where the facility in which a business is conducted remains the same, a significant increase in activity caused by a change in operating procedures will not be protected.Id.In the Kreger case, the increased business**219 followed a change from a retail to a wholesale fuel oil operation-In the case of the hotel, the increased activity followed a shift in emphasis from lodging and meals to night entertainment.As in Kreger,this was more than a growth in business;it was a substantive change in use. Cape Resort argues that the changes that have been made in the hotel's ground-floor entertainment offerings merely reflect changes in public tastes in the years between 1926 and the present and that a disco and electronic game room are, in effect,modem equivalents of dances in the hotel*215 lobby and bingo.It is true that a valid nonconforming use does not lose that status merely because it is improved and made more efficient.Berliner v.Feldman,363 Mass.767,775, 298 N.E.2d 153 (1973).Wayland v.Lee,325 Mass.637,643,91 N.E.2d 835(1950).Such changes are permissible, however,only if they are"ordinarily and reasonably adapted to the original use and do not constitute a change in the original nature and purpose of the undertaking? Berliner v.Feldman,supra. The facts found by the judge(which are amply supported by the evidence)indicate that the expansion and updating of the hotel's activities were not adapted to the original nonconforming use. Thus the shift from hotel to"entertainment complex"constitutes a change in the nature and purpose of the undertaking.This transformation of the hotel cannot be justified as"modernization"to accommodate 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 8 • a changed society. Cape Resort urges us to conclude that the entertainment facilities in question are a permissible aspect of the hotel business.In support of this claim it cites cases such as Goff v Fowler,3 Pick.300(1826),and Bennett v.Inspector of Bldgs.of Cambridge,270 Mass.436,170 N.E.412(1930).Both of these cases involved issues of statutory construction and not the issue whether a hotel's status as a valid nonconforming use is affected by a significant growth in entertainment offerings.The question in Goff was whether a building near an inn was a"dependency"of the inn(under a statute regulating liquor licenses)and therefore covered by the inn's liquor license.In Bennett a property owner had been granted a permit to erect a hotel which contained a banquet hall and the issue was whether the ball was authorized by a provision of the relevant zoning by-law which permitted"accessory"buildings to be used for"business...customarily incidental to the building of which itis anaccessory."Bennett,supra at 441,170 N.E.412.In any event it is clear that the sale of alcohol in Goff and the banquet hall in Bennett were found to be incidental to the primary use of the property as a hoteL As the judge's findings in the instant case demonstrate, both the current operation of the Brothers Four and the advertising*216 suggest that lodging and food service at the hotel have become"dependencies"of the primary use as an entertainment complex.It could hardly be maintained that the current operation of the ground-floor entertainment facilities,together with the minimal sale of food and lodging,is"common in the conduct ofhotels." Bennett v.Inspector of Bldgs.of Cambridge,supra 270 Mass.at 444,170 N.E.412. Support for this conclusion can be found in the fact that Cape Resort has adopted the name Brothers Four rather than Terrace Gables Hotel or Cape Resort Hotel. Cf. Bridgewater v.Chuclaan,supra(change of name in telephone listing and on vehicles of business supported finding of change in use). Finally,it is clear that the judge was correct in fording that the current use of the hotel property has an effect on the neighborhood"different in kind"from the effect of the use in 1926.Even when allowance is made for the limited use of automobiles in 1926,it is clear that the development of the hotel as a nighttime entertainment center capable of accommodating over 800 people has caused traffic and noise problems wholly different from those which would be generated by a business run primarily as a hotel.The change in effect on the surrounding area is sufficiently illustrated by the findings that nearby residents are sometimes kept awake until 2 or 3 A.M.and that management has found it advisable to station up to twelve employees outside**220 the hotel at closing time to direct traffic and promote order. The findings,therefore,fully support the judge's conclusion that,under all three of the tests reviewed in Bridgewater v. Chuckran,supra,Cape Resort has failed to sustain its burden of proving that the operation of the hotel is not a change in use. [2]2.Effect of building permits and variance granted to prior owners ofhotel.Cape Resort also contends that the present use of the hotel's ground-floor facilities is protected by the statute of limitations contained in(IL.c.40A,s 7.[FN8]*217 The claim is that the current use of the hotel is in accordance with certain permits granted to previous owners and that the passage of over six years since the use allowed by these permits commenced bars any action to limit the current use. The facts on which this claim rests are as follows.In 1956,the hotel's owner received a permit to enclose an open porch on one corner of the hotel.The application for the permit states only that the owner proposes to enclose a porch.There is no indication as to the reasons or need for the change.In 1961,a further building permit was granted.The application for this permit states that the owner`propose(s)to add 21'X 43'to side ofpresenthotel&remodel a portion of interior." When it was completed,this addition housed the frolic room.It now houses the show lounge. FNB.The original version of this statute of limitations was passed in 1970 and was found in CIL.c.40A,s 22. See St1970, c. 678,s 1. General Laws c. 40A,s 7,which was part of a new c.40A passed in 1975, see St 1975,c.808,s 3,reads in pertinent part(with former s 22 language in brackets):"(I)freal property has been improved and used in accordance with the terms of the original building permit,...no action...,the effect or purpose of which is to compel the abandonment,limitation or modification of the use(contemplated)allowed by said permit...by reason of any alleged violation of the provisions ofthis chapter,or of any...by-law adopted 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 9 • thereunder,shall be maintained,unless such action...is commenced...within six years next after the(issuance of such permit)commencement of the alleged violation of law." The judge found that the current use of the original frolic room is protected under G.L.c.40A,s 7,while the uses being made of the remainder of the ground floor of the hotel are not We agree with those conclusions. Well over six years had elapsed between the time the frolic room was built in 1961 and the time the association brought its action to compel Cape Resort to limit its use of the space in 1977.Thus,c.40A,s 7,bars the attempt to enforce the by-law with respect to the frolic room if it"has been improved and used in accordance with the terms of the original building permit."The association argues(1)that s 7 has no application to this case because"original building permit" is limited to a permit which authorizes the"erection of a new and independent building or structure,"and*218 that the 1961 permit was not such a permit[FN9]and(2)that,in any event,the frolic room is not now being used in accordance with the 1961 permit FN9.The association concedes that there may not have been such a permit for the erection of the original Terrace Gables Hotel. We agree with the judge that the meaning of"the original building permit"is not as narrow as the association suggests. The association's position rests largely on an erroneous interpretation of the words"real property,"in the phrase"if real property has been improved and used in accordance with the terms of the original building permit,"as including only raw land."Real property,"however,has always comprised both land and buildings.Bates v.Sparrell,10 Mass.323,324 (1813)("things real are lands,tenements,and hereditaments"(citing Blackstone)).Furthermore,the phrase"use allowed by said permit"is not limited only to a new and distinct use to which a new building would be put,as the association would have it.The use may be a new one or it may be the same as the use to which an existing structure on the land is being put.Under the association's view of 7,no alterations of or additions to existing buildings,even those undertaken in accordance with properly issued building permits,**221 would be protected by the s 7 statute of limitations.This result conflicts with the obvious intent of the Legislature to limit the time within which building permits could be'attacked as issued in violation of a zoning regulation.See generally Holmes,Zoning Limitations-Limiting Enforcement of Laws Relating to Buildings,55 Mass.L.Q.377(1970).The judge correctly interpreted the words"original building permit" as meaning the first permit issued with respect to aparticular improvement of real property.We need not decide the exact range of improvements to real property to which the words`original building permit"might apply.The frolic room was clearly such an improvement,and the permit authorizing its construction was the"original building permit"for purposes of our analysis. *219 The"Preliminary Layout"which accompanied the 1961 application forapermit to build the frolic room indicated very clearly that the space would include a bar,cocktail lounge,and entertainment facilities.Although the record contains only the application for the pemrit,and not the permit itself;all parties appear to concede that a permit was issued,and the judge so found.The show lounge currently occupying the space is being used for the same purposes as it predecessor, the frolic room,was used,i.e.,afternoon"happy hours"and dancing,drinking,and entertainment in the evening.Thus, Cape Resort meets the requirement that the space be"used in accordance with the terms of the original building permit." G.L.c.40A,s 7.The judge correctly held that even if this use of the space was illegal in 1961,under CIL.c.40A,s 7, the association's action to enjoin that use comes too late. Cape Resort's further contention that GL.c.40A,s 7,protects the entire present use of the hotel's ground floor must, however,be rejected.The sole support for this contention is the fact that an open porch on the ground floor was enclosed pursuant to a 1956 building permit and for the purpose of enlarging the inside floor area.Cape Resort introduced no ©2010 Thomson Reuters.No Claim to Orig.US Gov.Works.. 10 evidence of the use to which the enclosed porch was put in 1956.It appears from a drawing of the present layout of the hotel's ground floor that the porch no longer constitutes a distinct space in the hotel but is simply a part ofthe game room. In short,Cape Resort did not meet its burden of showing that the porch is being"used in accordance"with the permit authorizing its enclosure.Under these circumstances the 1956 permit cannot serve as the source of any additional protection for the current use of the hotel. [3]Finally,it is also clear that permission to operate the present ground-floor facilities cannot be implied from a variance for a parking lot granted to a prior owner of the hotel in 1969 by the Falmouth board of appeals.All the hotel's owner requested and all he received in 1969 was permission to use a vacant portion of his land for aparking lot,*220 for which fees would be charged.The legality under the zoning law of the activities carried on inside the hotel was not before the board of appeals and was not necessary to its decision.So far as the board's written decision reveals,the board assumed only that the Terrace Gables Hotel was a permitted nonconforming hotel in a residential area. The specific findings supporting the decision to grant the variance related to the inability of the hotel owner to provide adequate parking space . for guests unless he could build a new lot.The effect of the variance was to alleviate parking problems at the hotel,not to legalize all uses to which hotel buildings were being put. The judge correctly refused to attribute any broader significance to the granting of this variance. [4]3.Use of the"lodge"to house guests.The lodge is a small wooden structure located to the rear of the main hotel building.It contains fourteen guest rooms and was used prior to 1962 for housing guests of the hotel.The association in effect concedes that this use of the lodge was a valid prior nonconforming use.In 1962 the lodge was conveyed to a Mr.and Mrs.Daley.There was evidence that the Daleys used the lodge as a rooming house.On June 27, 1975,Cape Resort acquired the**222 property and it was used again to accommodate overnight guests of the hotel.The association contends that the lodge enjoyed protection as a nonconforming use only by virtue of its association with the main hotel building and that it lost that protection when it was separated from the hotel and sold in 1962. The association characterizes the 1962 conveyance as an abandonment of the use of the lodge to house hotel guests.Under s 18(d)of the Falmouth zoning by-law,"when a non-conforming use has been discontinued for a period of one year,it shall not be re-established...."Theword"discontinued"is the legal equivalent of"abandoned."Pioneer Insulation&Modernizing Corp.v.Lynn,331 Mass.560,565, 120 N.E.2d 913(1954). [5][6][7] We agree with the trial judge that the evidence does not establish an abandonment.Under our cases an abandonment of a nonconforming use results from the concurrence*221 of(1)an intent to abandon and(2)voluntary conduct which carries the implication of abandonment.Pioneer Insulation&Modernizing Corp.v.Lynn,supra.Dobbs v.Board of Appeals of Northampton,339 Mass.684,686, 162 N.E2d 32(1959).The sale of property protected as a nonconforming use does not by itself establish an abandonment of the use.Wayland v.Lee,325 Mass.637,642-643, 91 N.E2d 835(1950).82 Am.Jur2d Zoning and Planning s 181(1976).See Revere v.Rowe Contracting Co.,362 Mass. 884,885,289 N.E.2d 830(1972)("The right to continue...a nonconforming use after adoption of zoning regulations is not personal to the particular owner or occupant on the effective date of the regulation").In this case the lodge has at all times been used for the commercial housing of guests.Furthermore,we find no violation of s 18(c)of the Falmouth zoning by-law,which provides that"(w)herever a non-conforming use has been changed to a more restricted use or to a conforming use,it shall not again be changed to a less restricted use."The judge's conclusion that the changes in ownership did not produce any material change in the use of the lodge was warranted by the evidence. [8]4.Use of the"annex"to house hotel guests.The annex is,hie the lodge,a small wooden building behind the main hoteL Until 1962 the annex was used as a dormitory for hotel employees.It was sold in 1962 to Asco Real Estate Trust and was acquired by Cape Resort in 1972.The judge found that some time after 1972 the annex was"converted"into accommodations for paying guests of the hotel.He noted,though,that there was no"significant evidence...concerning what,if any alteration or renovations were done to effect this conversion."In 1977 Cape Resort applied for and received a permit"to repair existing annex due to fire damage by replacing damaged area."The record does not reveal whether 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 11 • the work done pursuant to this permit facilitated the change from employees'quarters to guest accommodations.There was also no evidence on whether the shift in clientele provoked a change in the effect on the neighborhood. *222 The association has never challenged the lawfulness of the use of the annex as an employee dormitory,and we assume that this use was protected as a nonconforming use.At trial the association apparently argued that the prior nonconforming use of the annex had been lost by abandonment.All that has been shown,however,is that the property was sold in 1962.As we held above,a mere change in ownership does not make out an abandonment. The remaining issue is whether the change in lodgers from employees to paying guests is an impermissible change of. the nonconforming use.Under s 18(a)of the Falmouth zoning by-law"a non-conforming use may continue to be used for the same purpose."[FN10]Cape Resort argues that the current use of the annex meets the tests set out inBridgewater v.Chuckran,351 Mass.20,217 N.E.2d 726(1966),and discussed above. FN10.Under G.L.c.40A,s 6,local zoning by-laws shall apply to"any change or substantial extension"of a prior nonconforming use. **223 Although the question is a close one,the evidence warrants the judge's conclusion that a change in use occurred. Several previous decisions of this court support this conclusion.In McAleer v.Board of Appeals of Barnstable,361 Mass.317,280 N.E.2d 166(1972),a nonconforming inn had been granted a special permit to convert a dormitory for employees into"motel-like accommodations for overnight guests,"id.at 322,280 N.E.2d 166,underaby-law provision authorizing alterations of nonconforming buildings or structures upon the grant of such a special permit.A Superior Court judge annulled the decision to grant this permit because of the prospective conversion of the dormitory"to a type of use different from(the original nonconforming use)."Id.at 319,280 N.E.2d 166.This court affirmed,holding that "the occupation by lodgers of what had been employees'quarters,"id.at 321,280 N.E.2d 166,was a change in use.It is true that in McAleer,structural changes were to be made in order to effect the change in use and this court's opinion noted that"a change is proposed not only in the use but also in the nature of the facilities."Id.at 322,280 N.E.2d 166. However,*223 even assuming that in the instant case the lack of evidence of structural changes establishes that there were none,[FNI I]we think a change in purpose under s 18(a)of the by-law has been demonstrated.McAleer suggests as much,since physical alterations of a nonconforming structure(pursuant to a permit)were clearly authorized by the • relevant by-law;the issue was whether the physical alterations were desired in order to effect a change in use. FNI1.We note that Cape Resort bore the burden ofproof on the nonconforming use issue.Wellesley v.Brossi, 340 Mass.456,460,164 N.E.2d 883(1960).Colabufalo v.Public Bldgs.Comm'r of Newton,332 Mass.748, 751, 127 N.E2d 564 (1955). If Cape Resort believed that the absence of structural changes was legally significant,it bore the burden of establishing this fact at trial. Furthermore,the change in use of the annex is analogous to the change in use in Lexington v.Bean,272 Mass.547,172 N.E. 867 (1930).It was held there that"(t)he use of(a building) ... for the commercial purpose of repairing motor vehicles for hire is'substantially different'(under the relevant by-law)from(the prior valid nonconforming)use of it by a person residing on the premises for the purpose of repairing motor vehicles belonging to him as incidental to his trucking and express business and the occasional permissive use of it by persons storing automobiles on the premises." Id.at 553, 172 N.E.867. In the case of the annex,the building was formerly used as lodgings for employees,a use incidental to the operation of the main building as a hotel. Now the annex is being operated as a commercial venture in its own right. In effect,Cape Resort has expanded the use of the annex by adding a new'service. Such an expansion has been held to constitute a change m use. Jasper v.Michael A.Dolan,Inc.,355 Mass. 17,24,242 N.E.2d 540(1968) (addition of hard liquor to store selling beer and wine). See also I'R.M.Anderson,American Law of Zoning 2d s 6.46 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 12 (1976). The evidence warranted the judge's conclusion that a change in use of the annex had occurred and that its current use to house guests of the hotel is in violation of Falmouth's zoningby-law.We note,as the judge did,that Falmouth's by-law has been amended since these suits were begun so*224 that nonconforming structures or uses may now be extended, altered,changed,or rebuilt if a special permit is obtained from the board of appeals.Zoning By-Laws of the Town of Falmouth s 1222(adopted April,1979).Since the 1979 by-law also provides that hotels are allowed in single residence districts upon a grant of a special permit(see s 3315(a)),both s 1222 and s 3315(a)provide avenues by which the current . use of the annex might be legalized.In short,the town of Falmouth makes provision in its zoning by-law for property owners in Cape Resort's position.Cape Resort should seek its remedy at the local level. [9]5.Laches and estoppeL Cape Resort concedes in its brief that"prior Massachusetts case law establishes that lathes or**224 estoppel is not a defense to an action to enforce municipalities'by-laws or zoning ordinances."See McAleer v.Board of Appeals of Barnstable,361 Mass. 317,322-323,280 N.E.2d 166(1972)(laches);Ferrante v.Board of Appeals of Northampton,345 Mass.158,162,186 N.E.2d 471(1962)(estoppel);Everett v.Capitol Motor Transp.Co., 330Mass.417,421, 114 N.E.2d 547(1953)(laches).This is true even where there has been a substantial financial investment of the sort Cape Resort alleges occurred in its own case.McAleer,supra 361 Mass.at 322,280 N.E.2d 166. [10]Nevertheless,Cape Resort urges us to find that the relief sought by the association and the building inspector is barred,citing us to the only decision of this court in a zoning case which appeared to apply a laches theory,Chilson v. Zoning Bd.of Appeals ofAttleboro,344 Mass.406,409,182 N.E.2d 535(1962).In Chilson,however,the town building inspector had approved the landowner's move of a nonconforming use from one building to another on the same premises,and the move had been prompted by the town's relocation of a street.Furthermore,this court found that the move"was colorably within the exemption applicable to nonconforming uses."Id.Whatever the exact reach of the Chilson holding might be,see McAleer v.Board of Appeals of Barnstable,supra 361 Mass.at 323,280 N.E.2d 166, [FN12] it does not cover this case. Neither *225 the dramatic changes in the nonconforming use of the hotel's ground-floor space nor the changed use of the annex were specifically approved by an official charged with enforcing the Falmouth zoning by-law.Furthermore,the development of the hotel as an entertainment complex was not colorably within the exemption provided in the by-law for nonconforming uses.Laches and estoppel provide Cape Resort with no defense,and we decline the invitation to overrule prior cases establishing this rule. FN12.It was pointed out in Gattozzi v.Director of Inspection Servs.of Melrose,6 Mass.App.889,890,376 N.E.2d 1266(1978),that there is some question whether lathes is an available defense in actions in the nature of mandamus to compel a building inspector to enforce a zoning ordinance.Compare Chilson v.Zoning Board of Appeal of Attleboro,344 Mass.406,409, 182 N.E.2d 535(1962),with McAleer v.Board of Appeals of Barnstable,361 Mass.317,323,280 N.E.2d 166(1972).Since we find that even under Chilson laches would not be a defense in this case,we do not reach this issue.In many cases,however,the statute of limitations in G.L.c.40A,s 7,will make it unnecessary for defendants to rely on laches or estoppel. [11]6.Constitutional claims and scope of relief granted. Cape Resort argues that the First and Fourteenth Amendments to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution prohibit a court from restricting dancing and music in any nonconforming hotel,whether or not the hotel offered entertainment at the time it became a nonconforming use,on the theory that any such restriction would violate the hotel patrons'and owners'rights of free speech. On this ground,Cape Resort challenges the injunction entered against it The only case cited in support of this proposition is Commonwealth v.Sees,374 Mass.532,373 N.E2d 1151 (1978). In Sees this court struck down,solely under art.16,a city's application of a local ordinance to prohibit topless dancing in a bar. The opinion of the court emphasized that the ordinance as applied in Sees involved town officials in distinguishing protected. • 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 13 expression on the basis of content and that no governmental interest was shown to warrant the effort. Id.374 Mass.at 537,373 N.E2d 1151. In this case,there is no contention that the zoning by-law of Falmouth has been applied for such an impermissible purpose. Sees neither held nor implied that the owner of a nonconforming*226 hotel has an absolute right to develop facilities for music and dancing on as large a scale as he sees fit.Cape Resort points to no case so holding.No constitutional violation has been made out. Cape Resort does appear,however,to have a valid complaint with respect to the scope of the injunctive relief ordered by the judge.Cape Resort was enjoined"from using those portions of the ground floor**225 facilities known as the Disco Room.,.,the Pub,and the Game Room for the purposes of selling or providing alcoholic beverages,providing live entertainment, providing recorded music and dancing, and providing coin operated machines such as pinball machines and billiard tables." The judge specifically found, however, that in 1926, when the hotel became a nonconforming use,drinking,music,and dancing were offered to some extent in some of the areas covered by the injunction. It appears,therefore,that the injunction ordered by the judge was too broad.We remand the cases for reconsideration of the scope of the relief granted in light of the scope of the protected prior nonconforming use.In fashioning a revised injunction,the judge should seek to ensure that Cape Resort operates its facility as a hotel,withprimary focus on lodging, • meals,and entertainment for overnight guests.Any upgrading ofthe hotel which is reasonably adapted to these functions would be permissible.Thus,dining facilities may be open to the public and in conjunction with these facilities music and alcoholic beverages may be provided.Rooms not used for dining(apart from the frolic room which draws its protection from another source)may be used for recreational activities ancillary to the hotel use.It would also be appropriate for the hotel to hold dances or other similar events for the general public as long as this type of activity is merely ancillary to the primary use of the property as a hotel furnishing meals and lodging to overnight guests.In short,the revised injunction should limit Cape Resort's activities to those that could be said to*227 have reasonably evolved from the basic 1926 use of the property as a hotel. The judgments are reversed and the cases are remanded to the Superior Court for the entry of new judgments providing relief consistent with this opinion. So ordered. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 14 • Westlaw 555 N.E.2d 534 Page 1 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) P Supreme Judicial Court of Massachusetts, Suffolk. DERBY REFINING COMPANY,et al.' FN1.Belcher New England,Inc.The plaintiffs are affiliated corporations which we chal l refer to collectively in this opinion as Belcher because Belcher is operating the liquid asphalt facility in issue. v. CITY OF CHELSEA,et al.' FN2.The inspector of buildings of Chelsea.We shall refer to the defendants collectively as Chelsea. Argued April 4, 1990. Decided June 19, 1990. • Operator of asphalt company brought action against city to determine whether new zoning ordinance applied to its property. The Land Court Department, Suffolk County, Marilyn M. Sullivan, J., determined that operator's use of property was valid nonconforming use,and city appealed.After transferring case from the Appeals Court on its own motion,the Supreme Judicial Court,Greaney,J.,held that(1)there was preexisting lawful use of property,and(2) present use of property as liquid asphalt storage facility was not change or substantial extension of prior use. Affirmed. West Headnotes [ll Zoning and Planning 414 x'327 414 Zoning and Planning 414VI Nonconforming Uses 414k327 k.Continuance or Change of Use in General.Most Cited Cases Right to continue nonconforming use is not confined to existing user,but runs with land.M.G.L.A.c.40A,§6. 02010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 • 555 N.E.2d 534 Page 2 407 Mass.703,555 N.E.2d 534 • (Cite as:407 Mass.703,555 N.E.2d 534) 121 Zoning and Planning 414€='336.1 • 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases (Formerly 414k336) Right to continue nonconforming use can be lost if predecessor in title has abandoned use,that is,intended to abandon and engaged in voluntary conduct,whether affirmative or negative,which carried implication ofabandonment. c.40A,§6. [3]Zoning and Planning 414€336.1 • 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 4141336.1 lc In General.Most Cited Cases (Formerly 4141336) Zoning and Planning 414 0337 414 Zoning and Planning 414W Nonconforming Uses 4141336 Discontinuance or Abandonment 4141337 k.Cessation of Use.Most Cited Cases Mere nonuse or sale of property does not,by itself;constitute abandonment of nonconforming use.M.G.L.A.c.40A, §6. 141 Zoning and Planning 4144337 414 Zoning and Planning 414W Nonconforming Uses • 4141336 Discontinuance or Abandonment 4141637 k.Cessation of Use.Most Cited Cases Predecessor's conduct in"mothballing"facility,applying for property tax abatement,and notifying Coast Guard that it no longer intended to operate deep-water terminal on property did not establish that predecessor "abandoned" nonconforming use of property,given predecessor's affirmative steps to market facility as petroleum storage terminal; manner in which predecessor shut down facility evidenced intent to preserve facility in good condition for profitable resale,application forproperty tax abatement reflected fact that facility was no longer producing income for predecessor, and letter to Coast Guard was mandated by federal law once predecessor determined it would close facility pending sale. M.GL.A.c.40A,§6. [5]Zoning and Planning 414 X326 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 555 N.E2d 534 Page 3 407 Mass.703,555 N.E2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) 414 Zoning and Planning 414W Nonconforming Uses 414k326 k.Unlawful Use.Most Cited Cases Valid nonconforming use is not rendered unlawful by failure to possess requisite government approval,provided that such approval can be easily obtained.M.G.LA.c.40A,§6. 161 Zoning and Planning 414'326 414 Zoning and Planning . 414W Nonconforming Uses • 414k326 k.Unlawful Use.Most Cited Cases • Absence of Coast Guard approval for use of property as liquid asphalt storage facility at time of zoning change did not render valid nonconforming use unlawful; occupant's initial lack of approval was due in large part to federal law compelling predecessor to cancel existing letter of intent,which cancellation was necessary before new approval could be obtained,and occupant obtained approval shortly after completing renovations to facility.M.GLA.c.40A,§6. 171 Zoning and Planning 414 X327 414 Zoning and Planning 414V1 Nonconforming Uses 414k327 k.Continuance or Change of Use in General.Most Cited Cases Zoning and Planning 414 C=329.1 414 Zoning and Planning 414VI Nonconforming Uses 414k329 Enlargement or Extension of Use 414k329.1 k.In General.Most Cited Cases (Formerly 414k329) Occupants use of property must not constitute change or substantial extension of predecessor's previous use to be protected as preexisting, nonconforming use; inquiries relevant to determination of whether change or substantial extension has occurred are whether current use reflects nature and purpose of prior use,whether there is difference in quality or character,as well as degree,of use,and whether current use is different in kind in its effect on neighborhood. M.GL.A.c.40A,§6. [8J Zoning and Planning 414 X321 414 Zoning and Planning 414V1 Nonconforming Uses 414k321 k.In General.Most Cited Cases Occupant of property,as one seeking protected status,has burden of establishing compliance with factors relevant to C 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 555 N.E.2d 534 • Page 4 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) valid nonconforming use determination based upon predecessor's prior use.M.G.L.A.c.40A,§6. [9]Zoning and Planning 414€-'328 414 Zoning and Planning 414VI Nonconforming Uses 414k328 k.Particular Cases as Involving Change of Use.Most Cited Cases Fact that product being delivered,stored,and distributed changed from one petroleum product to another petroleum product did not mandate conclusion that change in nature or purpose of use of property occurred, for purposes of determining whether use of property to store liquid asphalt was valid nonconforming use in view of previous use of property to store gasoline,kerosene,and other fuel products.M.G.L.A.c.40A,§6. [10]Zoning and Planning 4144C:=328 414 Zoning and Planning 414VI Nonconforming Uses 4141328 k.Particular Cases as Involving Change of Use.Most Cited Cases Fact that liquid asphalt stored on property had to be kept heated did not compel conclusion that quality,character,and degree of use of property changed,for purposes of determining whether using property to store liquid asphalt was valid nonconforming use,though petroleum products previously stored on property were not heated. 111]Zoning and Planning 414 X328 414 Zoning and Planning 414VI Nonconforming Uses 4141328 k.Particular Cases as Involving Change of Use.Most Cited Cases Trial judge could properly conclude that use of property to store liquid asphalt was not different in kind from previous use of property to store petroleum products in its effect on neighborhood,despite offensive smells and potential health risks associated with present use;residents who testified at hearing admitted other businesses omitted offensive odors for years,and while evidence regarding comparative health risks of present and prior uses was conflicting,present use was more limited than prior use in both time and space.M.G.L.A.c.40A,§6. **535*703 Ira H.Zaleznik,Boston,for defendant Robert C.Gerrard(Carol IL Cohen,Boston,with him),for plaintiffs. Before LIACOS,C.J.,and WILKINS,LYNCH,O'CONNOR and GREANEY,JJ. GREANEY,Justice. The question in this case is whether Belcher New England,Inc.(Belcher),may operate a liquid asphalt storage facility on waterfront property at 99 Marginal Street*704 in Chelsea.Belcher maintains that its use of the property is protected 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 555 N.E2d 534 Page 5 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) under G.L.c.40A,§6(1988 ed.),as a prior nonconforming use,from the application of anew Chelsea zoning ordinance which purports to prohibit the use. Belcher also argues that the new Chelsea zoning ordinance is invalid. Chelsea maintains the converse of both propositions.We transferred the appeal from the Appeals Court on our own motion.We conclude,as did the Land Court judge who heard and decided the case,that the use is protected by G.L.c.40A,§6. Consequently,we need not address the arguments pertaining to the validity of the new zoning ordinance. Belcher brought the action in the Land Court P°to determine whether the new Chelsea zoning ordinance applied to the property.The judge conducted a lengthy trial,which included testimony from several expert witnesses and personal inspections of the property from the shore and from a tugboat We take the facts from the judge's extremely thorough memorandum of decision. FN3.The action was brought pursuant to CIL.c. 185, § 1(Q 1/2 ),and G.L.c.240, § 14A(1988 ed.). See Banquer Realty Co.v.Acting Bldg. Comm'r of Boston, 389 Mass.565,569-571,'451 N.E.2d 422(1983). The property lies on the bank of the Chelsea Creek in Chelsea, in a highly industrialized neighborhood formerly designated as an industrial waterfront district.As described in Mahoney v. Chelsea,20 Mass.App.Ct 91,478 NA2d 160(1985),a decision**536 referred to by the judge as accurately depicting the area she observed on the views,"[t]he district is generally old and unattractive and is composed largely of oil tank farms, warehouses,junkyards, and a shipyard.Abutting the district is an industrial district which contains a junkyard,a truck sales office,a fruit and produce warehouse and land owned by the Quincy and Sun Oil Companies.The banks of the creek in East Boston across from the site are lined with oil tank farms and a salvage yard."Id at 92,478 N.E2d 160. Title to the property was acquired in the 1920's by Texaco Oil Refining and Marketing,Inc.(Texaco),or its predecessor *705 corporations.Some time around 1960,Texaco constructed a petroleum storage facility on the property by installing seven large storage tanks,a dock,"breasting dolphins,"and a truck-loading ramp.Ocean-going tankers would dock at the breasting dolphins,hook onto the permanent system ofpiping,and pump their cargoes directly into the storage tanks. Those cargoes included three grades of gasoline,ship kerosene,two grades of aviation fuel,and a petroleum product called"No.2 fuel,"which is similar to diesel fuel.The petroleum products then would be pumped from the storage tanks to a loading rack for direct delivery into trucks by means of a second system of pipes equipped with downspouts.The facility also includes two brick buildings,which housed Texaco's offices,warehouses,and physical plant,and a separate garage to house and service delivery trucks. Texaco continued to operate the petroleum storage facility on the property until 1983,when,in response to changing economic conditions in the industry,it entered an agreement entitling it to joint use of a similar facility owned by Gulf Oil Corporation on Eastern Avenue in Chelsea.Texaco then proceeded to"mothball"the Marginal Street facility.This process included pumping out the storage tanks,hiring a contractor to clean them,purging the feed lines,filling them with a chemical preservative,and sealing them.The business office was closed,and its contents removed.However, Texaco continued to heat the building,and hired a security firm to check the premises. After"mothballing"the property,Texaco tried to sell it.Texaco marketed the facility in the same way that it customarily disposed of other properties no longer needed in the operation of its business.It placed advertisements in trade journals and made contact with petroleum suppliers to ascertain whether they might be interested in a purchase.In addition to these marketing efforts,Texaco hired a firm to install a"cathodic protection system"to preserve the steel of the empty tanks for the next user.Texaco also maintained the flammable storage licenses issued pursuant to CIL.c.148,§13(1988 ed.),for the entire period during which the propertywas*706 on the market for sale.The judge found that Texaco"was 0 2010 Thomson Reuters.No Clams to Orig.US Gov.Works. 5 • 555 N.E.2d 534 Page 6 407 Mass.703,555 N.E2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) anxious to sell the facility and to realize the highest possible price therefor which would appear to be the use which had been made of the locus for many years." After one proposed sale fell through,Texaco succeeded in selling the facility to Derby Refining Company(Derby)on January 15,1986.On that same date,Derby leased the facility to Belcher.The Chelsea zoning ordinance in effect when Derby took title to the premises from Texaco provided for an industrial waterfront district.Permitted uses in this district included"oil and gas tank farms including distributive facilities."The use ofthe property as a petroleum storage facility thus was a conforming use at the time of Derby's acquisition of the property. Belcher immediately set about to determine the best use to make ofthe property.It ultimately decided to operate a liquid asphalt storage facility on the premises.'''To prepare for this use,Belcher installed a hot oil heating system to heat the tanks and pipes so that the asphalt could be preserved in a liquid state for pumping.Belcher also insulated the exteriors of••537 three of the storage tanks to prevent heat loss,'''added scales to the truck-loading dock,and made various other modifications to the pipes,valves,and tanks.This work began in the summer of 1986. FN4.The judge found that,Ince the various gasolines and grades of fuel oil that Texaco had previously stored at the facility,liquid asphalt is a petroleum derivative. FNS.Of the seven storage tanks on the premises,Belcher utilizes only three in its asphalt storage operation. On March 14,1986,after Derby had purchased the property but before Belcher had begun work to prepare it for asphalt storage,notice appeared in the Chelsea Record,a newspaper of general circulation in Chelsea,of a public hearing to be held on proposed amendments to the zoning ordinance. The new zoning ordinance passed pursuant to that notice radically changed the permitted uses in the new waterfront district which was no longer zoned as an industrial waterfront district.The new ordinance provides:"The•707 purpose of the Waterfront District is to provide an area for uses which are water related and/or which benefit from the proximity to the airport or the harbor,and to encourage public access to the waterfront."Belcher's intended use of the property as an asphalt storage facility was rendered a nonconforming use by this new zoning ordinance. In September of 1986,Belcher applied for a certificate of occupancy for the facility.After fust determining that the certificate should issue,and notifying Belcher to that effect,the building inspector of Chelsea had second thoughts,and revoked the portion of the certificate relating to asphalt storage"pending the satisfactory documentation regarding the emission of objectionable vapors."Belcher continued to press for full approval,but decided to withdraw its application in February, 1987.In March, 1987,Belcher again applied for a certificate of occupancy.The application was denied, and this action ensued. The issue at trial was whether Belcher's use of the property as a liquid asphalt storage facility was protected as a preexisting,nonconforming use under G.L. c.40A, § 6 (1988 ed.), set forth in relevant part below. FN6 The judge reasoned that the decision turned on the answer to two questions raised by the language of§6:(1)Was there a use of the property"lawfully in existence"on March 14,1986,the date of first notice concerning the proposed amendment to the zoning ordinances,and(2)Is Belcher's use of the property as*708 a liquid asphalt storage facility a"change or substantial extension"of Texaco's prior use of the property?The judge answered the first question in the affirmative, and the second in the negative. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 555 N.E.2d 534 Page 7 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) • FN6."Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun,or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five,but shall apply to any change or substantial extension of such use,to a building or special permit issued after the first notice of said public hearing,to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent...." This statute maintains the essential principles set forth in the prior G.L.c.40A,§5,for nonconforming uses and makes relevant the decision construing similar provisions of§5. 1.Preexisting lawful use.We agree with the judge that the case should be decided by application of the two provisions of CIL.c.40A,§6,quoted above,to the facts.The first consideration is whether the facility constituted a lawful use existing on the property when notice of the revision of the zoning ordinance was first published on March 14, 1986. Chelsea makes two arguments in support of its contention that there was no lawful,preexisting use on the property on March 14,1986.First,Chelsea contends that Texaco had abandoned use of the property when it mothballed the facility in 1983 FN7 Second,Chelsea argues that,even assuming an abandonment had not occurred,Belcher's use of the property as a liquid asphalt storage facility is not a lawful use because Belcher lacked requisite United States Coast Guard(Coast Guard)approvaL We address each argument in turn. FN7.There appears to be no dispute that Texaco's use of the property prior to 1983 was a valid use under the zoning scheme in effect at that time. **538[1][2]a.Abandonment.Under Massachusetts law,the right to continue a nonconforming use is not confined to the existing user,but runs with the land.See Revere v.Rowe Contracting Co., 362 Mass. 884, 885,289 N.E.2d 830 (1972).However,that right can be lost if a predecessor in title has abandoned the use.See Wayland v Lee,325 Mass. 637, 642 a 2, 91 N.E.2d 835 (1950), and cases cited. To constitute an abandonment, the discontinuance of a nonconforming usemustresult from"the concurrence oftwo factors,(1)the intent to abandon and(2)voluntary conduct, whether affirmative or negative,which carries the implication ofabandonment."Pioneer Insulation&ModernizingCorp. v. Lynn, 331 Mass. 560, 565, 120 N.E.2d 913 (1954). See Cape Resort Hotels, Inc. v. Alcohol Licensing Bd of Falmouth,385 Mass.205,220-221,431 N.E2d 213(1982);Dawson v.Board ofAppeals of Bourne, 18 Mass.App.Ct. 962,963,469 N.E.2d 509(l984)? FNB.We reject Chelsea's suggestion that the judge erred by not finding that the lack ofactive use in 1986made the use nonexistent. It is not disputed that Texaco had been operating a petroleum storage facility on the property for several years prior to the zone change.The fact that active use of the storage facility had been temporarily suspended did not require a finding that the use no longer existed.See Morin v.Board of Appeals of Leominster,352 Mass.620,623,227 N.E2d 466(1967),where the court dealt with an analogous situation in which the use of property bad been suspended,and concluded that the use would be in existence as a valid nonconforming use "provided [the owner] had not abandoned the use ... prior to the adoption of[new] ordinance."Thus,the relevant issue in this case is whether that previous use had ceased to exist for practical purposes prior to March 14, 1986.See 1 R.M.Anderson,American Law of Zoning§ 6.65.(3d ed. 1986). Chelsea's contrary argument essentially attempts to convert the noun"use,"as it is employed in G.L.c.40A, §6,to the verb"use"which conveys ongoing activity.The distinction between the,terms is pointed out in Paul v. Selectmen of Scituate, 301 Mass.365,370, 17 N.E2d 193 (1938).Accordingly,the judge was correct in applying the subjective abandonment test to the facts.By contrast,the cases cited by Chelsea,see Everett v. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 555 N.E.2d 534 Page 8 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) Capitol Motor TYansp. Ca, 330 Mass.417, 114 N.E.2d 547 (1953);Billerica v. Quinn, 320 Mass.687,71 N.E.2d 235(1947),deal with the issue whether any prior use had even begun to exist,and are,for that reason alone,inapposite. [3][4]*709 Mere nonuse or sale ofproperty does not,by itself,constitute an abandonment.See Cape Resort Hotels,Ina v.Alcohol Licensing Bd of Falmouth,supra 385 Mass.at 221,431 N.E.2d 213;Pioneer Insulation&Modernizing Corp.v.Lynn,supra 331 Mass.at 565, 120 N.E.2d 913;Wayland v Lee,supra 325 Mass.at 642 n.2,91 N.E2d 835; Paul v.Selectmen of Scituate, 301 Mass.365,370, 17 N.E2d 193(1938).Additional facts must be present before a finding of abandonment is warranted.Chelsea points primarily to three such facts:that Texaco(1)"mothballed"the facility;(2)applied for a property tax abatement for 1985;and(3)notified the Coast Guard that it no longer intended to operate a deep-water terminal on the premises. The fact that Texaco"mothballed"the facility constitutes evidence of nonuse,but is not enough by itself to require a finding of abandonment.We agree with the judge that the reasonable inference to be drawn from the manner in which Texaco shut down the facility is precisely the opposite of abandonment-that Texaco intended to preserve the facility in good condition for a profitable resale.We also agree with the judge that Texaco's application for a 1985 property tax abatement merely reflected the fact that the facility was no longer producing income for Texaco.Consequently,that*710 application could be found by the judge as not showing an intent to abandon. Chelsea makes much of a letter sent by Texaco to the Coast Guard in which Texaco stated that it no longer intended to operate a deep-water terminal facility. Chelsea suggests, referring to Dawson v. Board of Appeals of Bourne, 18 Mass.App.Ct.962,469 N.E2d 509(1984),that the letter manifests an intent to abandon"as a matter of law."Reliance on the Dawson decision is misplaced.In Dawson, the plaintiffs had operated a nursing home prior to a change in the zoning law which rendered such use nonconforming.Approximately two years after closing the home and voluntarily surrendering their license to operate it, the plaintiffs sought a special permit to use the premises for a different nonconforming use**539(apartments).In reversing the judgment for the plaintiffs,the Appeals Court held that"there was an abandonment of the use of the property as a nursing home when the license to maintain a nursing home was surrendered."Id at 963,469 N.E.2d 509. The holding in Dawson rested on the fact that the plaintiffs voluntarily surrendered their operating license. By comparison,Texaco's action was mandatory;Federal law required it to"cancel,in writing,the letter for any facility at which oil transfer operations are no longer conducted."33 C.F.R.§ 154.110(c)(1989).Once Texaco determined that it would close the facility pending a sale,it had no choice but to notify the Coast Guard of the cancellation of its letter of intent. This involuntary action carries little persuasive weight when compared with Texaco's voluntary action of diligently renewing its flammable storage licenses in each year preceding the sale to Derby.See Tamerlane Redo+Tt That v. Board of Appeals of Provincetown, 23 Mass.App.Ct 450, 454455, 503 N.E2d 464 (1987) (maintaining an innkeeper's license indicates an intent to use the premises as an inn).There are also no clear indicia of abandonment.For example,the property was not left unprotected or unsecured,it was not changed to a conforming use,and no buildings were demolished.See 4 A.H.Rathkopf&D.A.Rathkopf,Law of Zoning and Planning,§51.08,at 51-144-145(1983 & 1989 Supp.).Keeping in mind *711 that"[albandonment is primarily a question of fact," Paul v. Selectmen of Scituate, 301 Mass.365,370, 17 N.E.2d 193(1938),we agree with the judge that Texaco's efforts,together with the affirmative steps taken to market the facility as a petroleum storage terminal,"are illustrative of Texaco's attempt to maintain the integrity of the premises as a marine distributive facility in order to sell it for such use.In short,even if Texaco had no further use of the locus for its own corporate purposes,it did not intend to surrender such use." • [5][6]b.Lawfulness ofBelcher's use.Chelsea next argues that the asphalt storage facility was not lawfully in existence ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. • 8 . 555 N.E.2d 534 Page 9 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) at the time of the change to the zoning ordinance because Belcher at that time did not have a letter of intent to operate its facility on file with the Coast Guard. A valid nonconforming use is not rendered unlawful by failure to possess requisite government approval, provided that such approval can be easily obtained. See Selectmen of Wrentham v. Monson,355 Mass.715,717-718,247 N.E2d 364(1969).Here,Belcher's initial lack of Coast Guard approval was due in large part to the Federal regulation which compelled Texaco to cancel its existing letter of intent 33 C.F.R. § 154.110(c).This cancellation was necessary before a new approval could be obtained.Furthermore,Belcher obtained Coast Guard approval shortly after completing its renovations to the facility.For these reasons,its use was not unlawful on the date of the zoning change. [7][8]2.Change or substantial extension. To be protected as a preexisting,nonconforming use,Belcher's use of the property must not constitute, in the language of CIL. c. 40A, § 6, a"change or substantial extension" of Texaco's previous use.See Everpure Ice Mfg. Co.v. Board of Appeals of Lawrence, 324 Mass.433,435436,86 N.E2d 906 (1949)("A lawful nonconforming use of land existing at the time of the adoption of a zoning ordinance which may be continued is substantially the same use to which the land was devoted when the ordinance became effective and not some other substantially different use unless the ordinance otherwise provides").As the judge correctlyruled,the issue whether a"change or substantial extension"had occurred would be determined by the application*712 of the familiar three-part test enunciated in Bridgewater v. Chuckran, 351 Mass.20,217 N.E2d 726(1966).Under that test,we inquire:(1) "Whether the[current]use reflects the'nature and purpose'of the[prior]use,"(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.'"Id at 23,217 N.E.2d 726,and cases cited.See Cape Resort Hotels,Inc.v.Alcohol Licensing Bd of Falmouth,supra 385 Mass.at 212,431 N.E2d 213;Revere v.**540Rowe Contracting Co.,362 Mass.884,885,289 N.E.2d 830(1972);Jasper it.Michael A.Dolan,Inc., 355 Mass. 17,23,242 N.E.2d 540(1968).As the one seeking protected status,Belcher had the burden of establishing compliance with the Bridgewater v. Chuckran test.See Cape Resort Hotels, Inc. it.Alcohol Licensing Bd of Falmouth, supra; Tamerlane Realty 7}ust it.Provincetown, supra 23 Mass.App.Ct.at 454,503 N.E.2d 464;Martin it.Board of Appeals of Yarmouth,20 Mass.App.Ct.972,482 N.E.2d 336 (1985)?" FN9.Chelsea contends that the judge incorrectly placed the burden ofproof on it.Pointing to the judge's finding that the evidence on the comparative health risks of petroleum fuels versus liquid asphalt was inconclusive, Chelsea argues that the judge's conclusion that no change in the use had occurred could have been based only on a misallocation of the burden of proof.However,comparative health risks were but one of several factors the judge considered on the issue of neighborhood impact,and her indication that the evidence was ambiguous was simply a reference to the inconclusive nature of the proof of that particular factor.As we shall discuss in more detail later in this opinion,other evidence before the judge provided support for her conclusion that, compared to Texaco's use,Belcher's use is not"different in kind in its effect on the neighborhood."A reading of the judge's decision and the transcript of the trial satisfies us that the judge was aware that Belcher had the burden of proof. [9]a.Nature and purpose of the use. Chelsea argues that the use of the facility has changed from the storage of fuel products to storage of a buildng material.In support of this contention,Chelsea cites to our opinion inJasper v.Michael A.Dolan,Inc.,355 Mass.17,242 N.E2d 540(1968).The defendants in Jasper operated a food market and an adjoining beer and wine package store on a residentially zoned property.Because the store predated the zoning regulation, it constituted a protected preexisting,nonconforming use. After pas.cage of the *713 zoning ordinance,however, the defendants sought to transform the entire premises into a package store which would sell hard liquor in addition to beer and wine.Applying the Bridgewater it. Chuck-an test,we held that"the sale of all-alcoholic beverages at the Belmont Street premises constitutes anew use and is in violation of the zoning ordinance."Jasper,supra at 24,242 N.E.2d 540. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 9 • 555 N.E.2d 534 Page 10 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) • Our holding in Jasper rested principally on the consideration that"the operation of a separately conducted all-alcoholic package store is substantially different from the sale of beer and wine in connection with a food store."Id at 24,242 N.E.2d 540.This change would likely have resulted in a transformation in clientele,and a consequent change in impact on the surrounding neighborhood.Furthermore,as the Jasper case itself illustrates,the sale of beer and wine and the sale of hard liquor are treated separately for licensing purposes.This classification reflects a legislative determination that beer and wine are substantially different in character than more potent alcoholic beverages.These facts distinguish Jasper from the instant case. We agree with the judge that Belcher's current use"is nearly identical in nature to that of Texaco:bulk deliveries by ocean-going vessels,bulk tank storage and wholesale distribution." In the absence of a demonstrated difference in neighborhood impact,a question we consider below,the fact that the product being delivered,stored,and distributed has changed from one petroleum product to another petroleum product does not mandate a conclusion that a change in the nature or purpose of the use has occurred.Compare Cape Resort Hotels,Inc.v.Alcohol LicensingBd of Falmouth, supra (change from residential hotel catering to elderly customers to entertainment complex catering to young, nonresident customers);Everpure Ice Mfg. Co.v.Board of Appeals of Lawrence,supra(change from ice business to fuel oil business);Tamerlane Realty That v.Board of Appeals ofProvincetown,supra(change from restaurant to hotel). The judge was warranted in finding that Belcher had satisfied the fust prong of the Bridgewater v. Chuckran test. [10]*714 b.Quality, character, and degree of use.Chelsea argues that the character of the storage activities occurring on the property has changed due to the fact**541 that liquid asphalt must be kept heated.Chelsea contends that the heating process produces offensive vapors,and has required substantial physical alteration to the facility,including The erection of two smokestacks.Because the issue of vapors will be dealt with below in our discussion of neighborhood impact,at this juncture we deal solely with the issue of physical alteration. We held in Cape Resort Hotels,Inc.v.Alcohol LicensingBd of Falmouth supra,that"a valid nonconforming use does not lose that status merely because it is improved and made more efficient,"provided,however,that the changes are "ordinarily and reasonably adapted to the original use and do not constitute a change in the original nature and purpose of the undertaking."Id 385 Mass.at 215,431 N.E.2d 213, quoting Berliner v.Feldman, 363 Mass. 767,775,298 N.E2d 153(1973).See Morin v.Board of Appeals of Leominster,supra 352 Mass.at 624,227 N.E.2d 466; Wayland v.Lee,supra 325 Mass.at 643,91 N.E.2d 835.Having concluded above that the original use of the property as a tank farm for petroleum products has not changed,we ask whether the modifications cited by Chelsea are"ordinarily and reasonably adapted"to that use.We conclude that they are.It is undisputed that liquid asphalt must be heated in order to prevent solidification,and that the modifications Belcher made to the facility were designed solely to accomplish that end.There is nothing to suggest that those changes were either extraordinary or unreasonable or that they changed the fundamental nature of the original enterprise.The judge was warranted in finding that Belcher had satisfied the second prong of the Bridgewater v. Chuckran test. [11] c. Neighborhood impact. The trial judge recognized that the third prong of the Bridgewater v. Chuckran test-pertaining to neighborhood impact-presented a close issue.In support of its contention that Belcher's liquid asphalt facility has a more deleterious impact on the surrounding neighborhood than Texaco's petroleum fuels facility had, Chelsea focuses*715 on the offensive smells and potential health risks associated with the Belcher facility. On the issue of neighborhood impact,the judge heard the following testimony.Two residents,who live next to the facility,testified that the asphalt exudes terrible odors.However,under cross-examination both residents admitted that various other businesses in their largely industrial neighborhood had also emitted offensive odors for years prior to Belcher's acquisition of the property. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 10 • 555 N.E2d 534 Page 11 407 Mass.703,555 N.E2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) Chelsea also presented testimony from two expert witnesses.A professional consulting engineer was retained to measure the emissions from Belches tanks at various sites around the neighborhood.The highest readings were taken at one owner's residence,where the expert recorded, over a twenty-four hour period, a total suspended particulate(TSP) concentration of 140 micrograms per cubic meter, and volatile organic compound (VOC) concentration of 320 micrograms per cubic meter PN1°. The expert conceded that the twenty-four hour TSP exposure limit set by the Department of Environmental Quality Engineering(DEQE)(now the Department of Environmental Protection)is 250 micrograms per cubic meter,and that be had not compared the Belcher emissions to those produced by Texaco when it operated the facility.Based on the emission levels recorded by this expert,a risk assessment expert estimated an increased risk of approximately three cancer cases per 1,000 people over a lifetime of continuous exposure.The latter expert offered no figure comparing this risk to that produced by Texaco's tenure. FNI O.In very general terms,TSPs are visible particles while VOCs are invisible,gaseous emissions.Both are emitted from heated asphalt. Belcher offered three expert witnesses to rebut the defendants'experts,and to provide their own assessments ofthe health risks associated with asphalt emissions.The first,the chief chemist and environmental toxicologist of an environmental consulting firm,estimated the number of**542 increased cancers to be approximately sixto seven per 1,000,000 people exposed continuously for seventy years to the levels of*716 asphalt emissions found by the defendants'consulting engineer.The second expert,a doctor of toxicology and comparative pharmacology,supplemented this testimony by concluding,based on a review of existing professional literature,that no scientific basis exists to conclude that asphalt emissions,in the levels present here,represent a public healthhazard.Finally,a third expert,a senior technical specialist in an environmental consulting firm,testified as to the contents of aDEQE report detailing the results of emissions tests conducted at the facility while it was being operated by Texaco,and compared those results to the Belcher emissions recorded by one of Chelsea's experts.This expert concluded thatthe VOCs emitted by Texaco were approximately seven times greater than those emitted by Belcher FN°. FN11. Chelsea argues that the judge committed several errors in permitting the testimony of the experts presented by Belcher to testify. None of the arguments has merit, and they may be disposed of by brief discussion. a.The judge did not abuse the considerable discretion vested in her,see Kearns v.Ellis, 18 Mass.App.Ct 923,924,465 N.E2d 294(1984),in dealing with the delay in the disclosure of the experts offered by Belcher in rebuttal.See Mass.R.Civ.P.26(e)(IXB),365 Mass.772(1974).Counsel for Chelsea knew the identity of these expert witnesses for almost two months,had ample time to prepare,and chose to do nothing. The testimony of the experts was vital to a fair analysis ofthe issues in the case.In view of that fact,and the length of time available to Chelsea's counsel to prepare,the judge acted reasonably in allowing the testimony.See Shaw v.Rodman Ford Truck Center,Inc., 19 Mass.App.Ct.709,713,477 N.E2d 413 (1985);Giannaros v.MS Walker,Inc., 16 MassApp.Ct.902,903,448 N.E.2d 1297(1983). b.The judge properly concluded that the third expert's testimony was properly based on facts about emission levels contained in a DEQE report which bad arrived at the facts through a scientific testing process sanctioned by the United States Environmental Protection Agency.This is not a case where the expert relied on opinions and conclusions(as distinguished from facts)in someone else's report. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 11 • 555 N.E.2d 534 Page 12 407 Mass.703,555 N.E.2d 534 (Cite as:407 Mass.703,555 N.E.2d 534) c.The judge did not err in concluding that the second expert's testimony concerning the chemical composition of asphalt bad a sufficient basis in the expert's personal knowledge,including his knowledge of the molecular structure of asphalt.See LaClair v.Silberline Mfg. Co., 379 Mass.21,32,393 N.E.2d 867(1979). The judge felt that the evidence on the comparative health risk ofpetroleum fuels and petroleum asphalt was ambiguous and inconclusive.Nonetheless,she concluded that Belcher*717 had satisfied the burden under the third prong of the Bridgewaterv.Chuck antestbyprovingthat:(1)itsasphaltbusinessoperatesonlyinwarmweather,whilethepetroleum fuel business formerly nm by Texaco operated year-round;and(2)Belcher uses only three of the storage tanks,while Texaco used all seven"412.The judge also found that the current complaints regarding the odors emitted from the asphalt tanks might be due to the fact that the Belcher facility"is the current nemesis of the neighborhood while the Texaco problems have faded."We are satisfied that the judge's determination that Belcher's use is not"different in kind in its effect on the neighborhood"than was Texaco's prior use has support in the evidence.Over-all,the case is one which is very dependent on its facts,the unusual nature of the Texaco and Belcher operations,the existing uses in a heavily industrialized waterfront zone,and the visual observations made by the judge.These considerations combine to make the judge's analysis of the situation a plausible one which necessarily ought to be sustained on appeal. • FN 12.Chelsea's contention that these comparisons are biased-because the figures for Texaco were taken during the period of that company's peak operations-is neither supported by the evidence nor legally relevant. Judgment affirmed • ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 12 Wd ttavnc 186 N.E.2d 471 Page 1 345 Mass.158, 186 N.E.2d 471 (Cite as:345 Mass. 158,186 N.E.2d 471) C Supreme Judicial Court of Massachusetts,Hampshire. Anthony FERRANTE et al. v. BOARD OF APPEALS OF NORTHAMPTON et al. Argued Nov.7, 1962. Decided Nov.30,1962. Bill in equity by way of appeal from a decision of zoning board of appeals refusing to grant a variance.From an order of the Superior Court,R.Sullivan,J.,directing the board to grant a variance,the board and an intervener appealed.The Supreme Judicial Court,Spalding,J.,held that decree granting a variance for commercial use of land in an area zoned for residential purposes was defective when court failed to find specifically that conditions existed especially affecting such parcel. Decree reversed. West Headnotes [1]Zoning and Planning 414 x'531 414 Zoning and Planning 4141X Variances or Exceptions 4141X(B)Proceedings and Determination 414k531 lc In General.Most Cited Cases All requirements of statutes concerning granting of zoning variance must be met before a variance may be granted. M.G.LA.c.40A§ 15. [2]Zoning and Planning 414(723 414 Zoning and Planning 414X Judicial Review or Relief 414X(D)Determination 414k723 k.Findings.Most Cited Cases Decree granting variance for commercial use of land in area zoned for residential purposes was defective when court. failed to find specifically that conditions existed especially affecting such parcel.M.G.L.A.c.40A§ 15. [3]Appeal and Error 30 0576 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 • • 30 Appeal and Error 30X Record 30X(D)Contents,Making,and Settlement of Case or Statement of Facts 30k576 k.Report by Trial Judge of Facts Found.Most Cited Cases When a case comes to the Supreme Judicial Court on a statutory report of material facts without the evidence,the report must contain every fact necessary to support the decree. [4]Zoning and Planning 414 X489 • 414 Zoning and Planning 4141X Variances or Exceptions 4141X(A)In General 414k489 k.Grounds for Grant or Denial in General.Most Cited Cases The fact that property owner constructed a building on a lot in contravention of applicable zoning ordinance did not constitute a condition"especially affecting such parcel"within contemplation of statute providing for granting of a variance owing to conditions especially affecting such parcel.M.G.L.A.e.40A§ 15. [5]Zoning and Planning 414 0='321 414 Zoning and Planning 414V1 Nonconforming Uses 414k321 k.In General.Most Cited Cases A use which exceeds zoning limitations cannot be made a fulcrum to lift those limitations. [6]Zoning and Planning 414 C=491 414 Zoning and Planning 4141X Variances or Exceptions 414IX(A)In General 414k491 k.Effect of Other Applications or Nonconforming Uses.Most Cited Cases Zoning and Planning 414 0=498 414 Zoning and Planning 4141X Variances or Exceptions 414IX(A)In General 414k492 Hardship,Loss,or Injury 414k498 k.Single Owner's Profit or Disadvantage.Most Cited Cases Fact that there were other nonconforming buildings in the area and that property owner had expended a substantial amount of money in constructing a building not authorized by zoning ordinance on lot did not justify granting of zoning variance.M.G.L.A.c.40A§ 15. • 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 • • [71 Zoning and Planning 414 C'488 414 Zoning and Planning 4141X Variances or Exceptions 4141X(A)In General 414k488 k.Right to Variance or Exception,and Discretion.Most Cited Cases • Zoning and Planning 414 x'607 414 Zoning and Planning • 414X Judicial Review or Relief 414X(C)Scope of Review 414X(C)1 In General 414k607 k.Variances or Exceptions,Decisions Relating To.Most Cited Cases No person has a legal right to a variance and only rarely with court order granting of a variance when zoning board of appeals has denied petition for a variance. [8]Zoning and Planning 414 0'544 414 Zoning and Planning 4141X Variances or Exceptions 4141X(B)Proceedings and Determination 414k544 k.Findings and Reasons for Decision.Most Cited Cases Detailed findings are not required when zoning board of appeals has refused to grant a variance.M.GL.A.c.40A,§ 15. [91 Zoning and Planning 414 X375.1 414 Zoning and Planning 414VIII Permits,Certificates and Approvals 414VIII(A)In General 414k375 Right to Permission,and Discretion 414k375.1 k.In General.Most Cited Cases (Formerly 414k375) Zoning board of appeals has no discretion to deny a building permit on zoning grounds when an applicant has complied with all applicable zoning by-laws or ordinances. 1101 Zoning and Planning 414 X762 414 Zoning and Planning 414X1 Enforcement of Regulations 414X1(A)In General 414k762 k.Defenses to Enforcement Most Cited Cases 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. • 3 • Doctrine of estoppel does not prevent a municipality from enforcing its zoning laws. [ii]Estoppel 156 X62.5 156 Estoppel . 156III Equitable Estoppel 15611I(A)Nature and Essentials in General 156k62 Estoppel Against Public,Government,or Public Officers 156k62.5 k.Acts of Officers or Boards.Most Cited Cases (Formerly 156k62(5)) Fact that property owner had been granted a building permit by appropriate city official did not estop zoning board of appeal from denying a variance for commercial use of the property which was in an area zoned for residential purposes. M.G.LA.c.40A§ 15. *159**472 Edwin P.Dunphy,Northampton,for plaintiffs. John F.Murphy,Jr,City Sol.,and Luke F.Ryan,Northampton,for Board of Appeals and intervener. Before*158 WILKINS,C.J.,and SPALDING,WHITIEMORE,CUTTER,KIRK and SPIEGEL,JJ. SPALDING,Justice. This is a bill in equity under CIL.c.40A,§21,inserted by St.1954,c.368,§2,by way of appeal from a decision of the board of appeals of Northampton refusing to grant to the plaintiffs a variance for a commercial use in an area zoned for residential purposes.Edward T.Pendergast,whose property abutted the plaintiffs',was permitted to intervene.The court ordered the board to grant a variance,and the board and the intervener appealed.The judge**473 made a report of material facts.The evidence is not reported. We summarize the findings of the judge as follows: The plaintiffs,husband and wife,are the owners of two virtually contiguous parcels of land in the village of Florence in Northampton. One,the Homestead lot,so called,fronts upon Meadow Street. The other parcel,which is called the Shop lot,is separated from the Homestead lot by Meadow Avenue, a private way. The Shop lot is located in a residence B district. Prior to 1952,the plaintiff Anthony Ferrante had conducted a cabinet making business on the Homestead lot. Expanding his business in 1952,he caused to be erected a concrete block building,twenty-five feet by forty feet,on the Shop lot. This building,which cost$12,000,was erected pursuant to abuilding permit issued by'the appropriate***[city]official.''Since then he has continuously conducted his woodworking business from the Shop lot building.'He employs several persons in this business and carries it on'in the ordinary manner with regard to the nature of the business.'The judge,who took a view,found that the Shop lot was located in an area which'although zoned for residence can hardly be characterized as such.'.The only land,other than the Shop and Homestead*160 lots,which fronts on Meadow Avenue,is a parcel owned by the intervener,Pendergast, and a parcel owned by one Bean.The intervener conducts a coal and ice business on his land,and Bean carries on an auctioneering business in a building which is in many respects'similar to those inexpensive metal buildings called 'Quonset Huts."No'other property is near enough to be in any way affected.'On the far side of the Bean property there is a'rather large cemetery.'The area in which the Shop lot is located is'but a short distance from a main street which is highly commercial.' ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 • Under the heading,`Hardship,'the judge found that the building erected by the plaintiffs could not be converted into a building for residential use,and that the'denial of a variance would not only end the***[plaintiffs]business but would - render this special purpose building incapable of occupancy and useless.' Under a heading entitled,`No substantial detriment to the public,'the judge found that the'only persons who would be affected by the granting of the variance for the continued operation of the* * * [plaintiffs] business would be the operator of the coal and ice business and the operator of the auctioneering business,'and the latter did not object. • Under the caption,'No derogation from the intent of the zoning laws of the City of Northampton,'the judge found as follows: 'The subject property is located between two operating businesses and its general location* **compels the conclusion that it could not reasonably be held to be appropriate for residential use.' After finding the foregoing facts,the judge rule& `Although the doctrine of estoppel was not squarely advanced by the ***[plaintiffs],the circumstances of the duly authorized***[city]official having issued the building permit(and the building having been built and the business operating***)taken together with all of the facts as set out above compel the conclusion that the** *Board acted unreasonably and arbitrarily and thus in excess of its authority** *.' [1][2][3][4][5][6]*161 It is settled that,before a variance maybe granted,all the requirements ofG.L.c.40A,§15,must be met. Blackman v.Board of Appeals of Barnstable,334 Mass.446,450, 136 N.E.2d 198;Atherton v. Board of Appeals of Bourne,334 Mass.451,454,136 N.E.2d 201;Shack v.Board of Appeals of Chelmsford,341 Mass.593, 595,171 N.E2d 167;Sullivan v.Board of Appeals of Canton,Mass., 185 N.E.2d 756Y One of the provisions of§15 is that a variance may be granted only where, **474 'owing to conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located,a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship,financial or otherwise to the appellant?The judge failed to find specifically that the variance should be granted`owing to conditions especially affecting such parcel,'and the decree,therefore,is defective.Shacka v.Board of Appeals of Chelmsford,341 Mass.593, 171 N.E.2d 167;Barnhart v.Board ofAppeals ofScituate,Mass.,179N.E.2d25l;"T Coolidge v.Zoning Board of AppealsofFramingbam,Mass., 180 N.E2d 670.F"'Since the case comes here on a statutory report of the material facts without the evidence,the report must`contain every fact necessary to support the decree,from the entry of which no fact not expressly found may be implied?Carilli Construction Co.v.John Basile&Co.,Inc.,317 Mass.726,727,59 N.E2d 706,707.The fact that the plaintiffs constructed a building in 1952 in contravention of the applicable zoning ordinance does not constitute a condition`especially affecting such parcel.'Colabufalo v.Public Buildings Com'r;ofNewton,336 Mass.205,211,143 N.E.2d 477.A use which exceeds zoning limitations`cannot be made a fulcrum to lift those limitations.' Cary v.Board ofAppeals of Worcester,340 Mass.748,750,166 N.E2d 690,692.Nor do the facts that there are other nonconforming buildings in the area and that the plaintiffs expended a substantial amount of money justify the granting of a variance. Bicknell Realty Co.v.Board of Appeal of Boston,330 Mass.676,680,116 N.E.2d 570. Bmzzese v.Board of Appeals of Hingham,Mass., 179 N.E2d 269.' FNl.Mass.Adv.Sh.(1962)1409. FN2.Mass.Adv.Sh.(1962)37,39. FN3.Mass.Adv.Sh.(1962)367,369-370. • 0 2010 Thomson Reuters.No Claim to Orig.US Gov:Works. 5 FN4.Mass.Adv.Sh.(1962) 1,3. [7][8]Rarely can a court order the granting of a variance when the board has denied the petition.No person has a legal *162 right to a variance.`Ifa case should come to us in which an owner had been denied a variance solely upon a legally untenable ground and the board should indicate that except for that ground the variance would have been granted, perhaps the court could give relief.'Pendergast v.Board ofAppeals ofBarnstable,331 Mass.555,559,120 N.E.2d 916, 919.The board's decision suggests no such untenable ground.Nor does it appear to have been reached by whim or caprice.See Pendergast v.Board of Appeals of Barnstable,supra,page 560,120 N.E2d 916.The plaintiffs argue that the board failed to state any ground for its decision other than that the variance is not one which'the Board has authority to grant'But this court has ruled that detailed findings are not required when the board refuses to grant a variance. Cefalo v.Board of Appeal of Boston,332 Mass. 178, 181,124 N.E.2d 247.Conceivably a decision of a board might be held to be arbitrary when all the facts presented compelled a finding that each requirement of§ 15 had been satisfied, and the board failed to make any findings to support its exercise of discretion in denying the variance.Such a case is not before us. [9]Cases cited by the plaintiffs where the court has ordered the board to grant a building permit are inapposite.The board has no discretion to deny a building permit on zoning grounds when an applicant has complied with all the applicable zoning by-laws or ordinances.These cases usually arise when the board has misinterpreted the the relevant by-law or ordinance.See D'Ambra v.Zoning Board of Appeal of Attleboro,324 Mass.61,84 N.E.2d 456. [10][11]The trial judge seems to have rested his decision to some extent on estoppel by reason of the fact that the plaintiffs had been granted a building permit by the'appropriate***[city]official.'This court has held that the doctrine of estoppel**475 cannot stay the hand of a municipality in enforcing its zoning laws.Cochran v.Roemer,287 Mass. 500, 510, 192 N.E. 58; Building Commissioner of Medford v. C. &11. Co., 319 Mass.273, 283, 65 N.E.2d 537; Manchester v.Phillips,Mass., 180 N.E2d 333.Ths And this is the prevailing view elsewhere.See Rathkopt The Law of Zoning and Planning,c.67,and cases collected in*163 119 A.L.R. 1509 et seq.The reasons for the inapplicability of estoppel in cases of this sort have been well stated by the Supreme Court of New Jersey in Zahodiakin Engineering Corp.v.Zoning Board of Adjustment,8 N.J.386,at page 396, 86 A.2d 127, 132,where it was said, 'The want of fundamental power cannot be indirectly supplied by the application of the doctrine of estoppel in pais.The elements of estoppel are wanting.The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance.The public has an interest in zoning that cannot thus be set at naught.The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril.'This language is pertinent to the case at hand. It follows that the issuance of a building permit and the erection of a building not authorized by the zoning ordinance did not entitle the plaintiffs to a variance by reason of estoppel. FN5.Mass.Adv.Sh.(1962)197,203. The final decree is reversed and a decree is to be entered stating that the decision of the board did not exceed its authority,that no modification of its decision is required,and that the clerk of the courtwithin thirty days after the entry of the decree send an attested copy thereof to the board. So ordered. • • ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 Westlaw. 676 N.E.2d 838 Page 1 424 Mass.404,676 N.E.2d 838 (Cite as:424 Mass.404,676 N.E.2d 838) • Supreme Judicial Court of Massachusetts, Suffolk. KA-HUR ENTERPRISES,INC. v. ZONING BOARD OF APPEALS OF PROVINCETOWN. Argued Feb.3,1997. • Decided March 10, 1997. Property owner appealed town zoning boards denial of applications for building permit and special permits for use of property as fuel oil storage and distribution depot The Land Court Department,Suffolk County,Robert V.Cauchon, J.,entered judgment upholding boards denial.Owner appealed.The Appeals Court,40 Mass.App.Ct 71,66IN.E.2d 120,Porada,J.,affirmed.Granting application for further appellate review,the Supreme Judicial Court,Fried,J,held that:(1)under town zoning bylaw,simple cessation of existing,nonconforming use for two years or more resulted in extinguishment of nonconforming use,and(2)evidence supported land court's conclusion that nonconforming use of property as fuel oil storage and distribution depot bad been discontinued for two years or more during prior ownership, so as to extinguish nonconforming use under town zoning bylaw. Judgment affirmed. West Headnotes [1]Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases Term "discontinued"was not legal equivalent of"abandonment"under town zoning by-law section providing that nonconforming use that bad been abandoned,or discontinued for two years,would not be reestablished;thus,simple cessation of existing,nonconforming use for two years or more would result in extinguishment of nonconforming use. M.G.LA.c.40A,§6;Provincetown,Mass.,Zoning by-law art.II,§2130. [2J Zoning and Planning 414 C=336.1 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 414k336.1 k.In General.Most Cited Cases Abandonment is one of two ways under statute in which nonconforming use can be extinguished.M.QL.A.c.40A,§ 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 6. [3]Zoning and Planning 414 x'337 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 4141337 k.Cessation of Use.Most Cited Cases Evidence supported land court's conclusion that nonconforming use ofproperty as fuel oil storage and distribution depot had been discontinued for two years or more during prior ownership,so as to extinguish nonconforming use under town zoning bylaw;evidence indicated that property was used during prior ownership primarily for fishing and truck repair business and that use ofproperty for fuel oil storage and distribution was ancillary to those businesses.M.GLA.c.40A, §6;Provincetown,Mass.,Zoning by-law art.II,§2130. [4]Zoning and Planning 4144C327 414 Zoning and Planning 414VI Nonconforming Uses 414k327 k.Continuance or Change of Use in General.Most Cited Cases Three-part test for determining whether current use of property has caused property to lose its protection as preexisting nonconforming use asks whether current use reflects nature andpurpose ofuseprevailing when zoningbylawtook effect, whether there is difference in quality or character,as well as degree,of use,and whether current use is different in kind in its effect on neighborhood. [5]Zoning and Planning 414 X327 414 Zoning and Planning 414VI Nonconforming Uses 4141327 k.Continuance or Change of Use in GeneraL Most Cited Cases Landowner challenging extinguishment of nonconforming use has burden ofproving requisite similarity in use to show there was no change in property's employment. **839*404 Jeanne S.McKnight(Elizabeth A.Lane,with her),Boston,for defendant Christopher J.Snow,Provincetown,for plaintiff,submitted a brief. Before WILKINS,C.J.,and LYNCH,O'CONNOR,FRIED and MARSHALL,IL FRIED,Justice. • The Appeals Court affirmed a judgmentby the Land Court upholding a denial of the plaintiffs application for a building permit and special permits.40 Mass.App.Ct.71,661 N.E.2d 120(1996).We granted the plaintiffs application for further appellate review.We also affirm. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 • The plaintiff is the owner ofproperty in Provincetown.In 1951,when Provincetown enacted its first zoning by-law,this • property's primary use was a fuel storage and distribution facility by a company known as Holway Oil,which use continued through November 13, 1978,when a comprehensive revision of the by-law was adopted. Because of its location in aresidential district,the property's use was permitted only as a prior nonconforming use.In 1979,the property was sold to*405 Nauset Trawling Co.(Nauset),which operated a fishing business and truck repair shop on the property until August,1987.Nauset continued to store fuel oil in two 20,000-gallon tanks located on the property and used this oil for its fishing vessels,personal residences of the owner and his parents,and occasional sales to out-of-town fishing vessels. The plaintiff purchased the property in August,1987.In October,1992,due to a leaking valve,the plaintiff was ordered to drain the fuel oil it had continued to store in the two 20,000-gallon tanks.In January, 1993,the plaintiff applied for a building permit in order to make improvements to the property which would facilitate the installation of a new 25,000-gallon fuel oil tank and allow the removal of the old tanks from the property.This permit was denied by the building inspector on the ground that during Nauset's ownership of the property, this nonconforming use had been abandoned or discontinued pursuant to art.II,§2130,of the by-law.The plaintiffappealed from this denial to the zoning boardwith a request forspecialpermitswhich would allow changes to**840 preexisting nonconforming uses.The denial was upheld and the special permits were also denied.On appeal to the Land Court,the judge found that Nauset's use of the property for fuel oil storage and distribution was ancillary to its fishing and truck repair business.Because he found the property's primary purpose had not been fuel oil and distribution for over two years,the judge held that the property had lost its protected status as a prior nonconforming use pursuant to art.II, §2130,of the by-law and G.L.c.40A,§ 6. The plaintiff presents the same claims it presented to the Appeals Court:(1)contrary to the Land Court's determination, the terms "discontinued" and "abandoned" as employed by the Provincetown zoning by-law, art. II, § 2130, are synonymous and(2)the judge erred in finding that the property's proposed use was no longer aprotected nonconforming use.Adopting the rationale of the Appeals Court's opinion,we affirm the holding and address each issue only briefly. [1]Provincetown's zoning by-law was revised following the enactment of G.L.c.40A,§6,in 1975,which stated that "[a]zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more."Tracking this language, *406 art. II, § 2130, of Provincetown's by-law reads,"A nonconforming use which has been abandoned,or discontinued for a period of two years,shall not be re-established...." The Appeals Court noted: "[p]rior to the passage,of the Zoning Act in 1975,the word `discontinued' in zoning ordinances and by-laws was interpreted to be the legal equivalent of'abandoned.'PioneerInsulation&Modernizing Corp.v.Lynn,331 Mass.560, 565 [120 N.E2d 913](1954).In Bartlett v.Board of Appeals of Lakeville,23 Mass.App.Ct.664,669 [505 N.E.2d 193](1987),however,we rejected the notion that the phrase`not used for a period of two years or more'in§6 was the legal equivalent of abandonment requiring a voluntary and intentional relinquishment of the use.In that case we concluded that a municipality now has two choices for terminating nonconforming uses,one being abandonment and the other a simple cessation of a nonconforming use for a period of at least two years." Ka-HurEnters.,Inc.v.Zoning Board ofAppeals of Provincetown,40 Mass.App.Ct.71,73,661 N.E.2d 120(1996).We find this reading to be more consistent with the language of the by-law's enabling statute,see Bartlett v.Board ofAppeals of Lakeville,supra at 669,505 N.E2d 193(otherwise the Legislature enacted a mere tautology"authorizing cities and towns to regulate nonconforming uses which have been'abandoned or abandoned for aperiod of two years or more'"), and comports with the legislative history of G.L.c.40A,§6,as reviewed by the Appeals Court,id at 666-670,505 N.E.2d 193;Ka-Hur Enters.,Inc.v Zoning Board of Appeals of Provincetown,supra at 73-74,661 N.E.2d 120. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 • [2]We acknowledge the fact that on two occasions since the enactment ofG.L.c.40A,§6,this court has issued opinions relying on cases that equate the term"discontinue"with"abandon."See Derby Ref Co.v.Chelsea,407 Mass.703,555 N.E2d 534(1990);Cape Resort Hotels,Inc.v.Alcoholic Licensing Bd of Falmouth,385 Mass.205,431 N.E.2d 213 (1982).Neither case,however,squarely presented us with the occasion to rule on the issue now before us.As the Appeals Court noted in Bartlett,supra at 668 n.7,505 N.E.2d 193(1987),we were not asked to consider this question in the case of Cape Resort,which involved a pre-Zoning Act by-law and in which we looked at the effect of a conveyance,holding that"a sale of property protected as a nonconforming*407 use does not by itself establish an abandonment ofthe use." Cape Resort Hotels,Ina v.Alcoholic Licensing Bit of Falmouth, supra at 221,431 N.E2d 213.In Derby Refining supra at 708,555 N.E.2d 534,we considered the use of the property at issue as a petroleum storage facility after the prior owner had"mothballed"fl the facility for**841 three years before it was purchased by the plaintiff In that case,we stated that"the right to continue a nonconforming use...can be lost if a predecessor in title has abandoned the use."In Derby Refining hie Cape Resort,neither defendant argued that a prior valid nonconforming use had been extinguished by nonuse for a period of two years or more. Instead, each defendant argued that the plaintiff had abandoned the nonconforming use.Thus,our statement in Derby Refining should not be read to require an abandonment in order to extinguish a nonconforming use,but rather as a reaffirmation that abandonment is simply one of the two ways in which a nonconforming use can be extinguished. F141.The prior owner had pumped out the storage tanks,hired a contractor to clean them,purged the feeding lines,filled them with a chemical preservative,and sealed them.The business office was also closed,although the prior owner continued to heat the building, hired a security firm to check the property,maintained its "flammable storage licenses,"and installed a"cathodic protection system"to preserve the steel of the empty tanks for the next owner and preserve the value of the property for sale to a party engaged in similar business. Derby Ref Co.v. Chelsea,407 Mass.703,705,555 N.E2d 534(1990). • [3][4][5]The Appeals Court reviewed the evidence and found that the property was primarily used to conduct a fishing business and store and repair trucks during the period ofNausefs ownership.As such,there was a"change or substantial extension".of the prior nonconforming use rru which caused the property to lose its protection as a preexisting nonconforming use.Ka-Hur Enters.,Inc.v.Zoning Board of Appeals of Provincetown,supra at 74,661 N.E2d 120. The Appeals Court found the evidence sufficient to support the judge's conclusion regarding this loss of*408 protected status,id, as do we.It is the plaintiffs burden to prove the`requisite similarity"in use to show there was no change in the property's employment and the judge was warranted in finding this burden unmet. FI42.The judge applied the three-part test we announced in Bridgewater v.Chuckran, 351 Mass.20,23,217 N.E.2d 726(1966)to determine whether there had been a"change or substantial extension."The three tests ask "(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.'"Id Ka-Hur Enters.,Inc.v.Zoning Board of Appeals ofProvincetown,40 MassApp.Ct.71,74 n.3,661 N.E.2d 120(1996). Judgment termed 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 C Appeals Court of Massachusetts, Barnstable. BUILDING INSPECTOR OF CHATHAM v Marion L.KENDRICK et al.}"' FN1.Douglas A.Kendrick. Argued Sept. 12, 1983. Decided Dec. 1, 1983. Town building inspector commenced action to enjoin property owners from conducting business for the repair of heavy equipment and related machinery. The Superior Court, Barnstable County, entered judgment in favor of building inspector,and an appeal was taken.The Appeals Court held that minutes of hearings held by town's zoning board of appeal on property owners'prior applications for special permits were inadmissible as substantive evidence of statements that property owner or his attorney made before the board. Reversed. ' West Headnotes 111 Zoning and Planning 414 E'786 414 Zoning and Planning 414X1 Enforcement of Regulations 414X1(B)Injunction Against Violation 414k786 k.Evidence in General.Most Cited Cases In action brought by town building inspector to enjoin property owners from conducting a business for repair of heavy equipment,property owners bore burden of proving defense that nonconforming use existed. [2]Evidence 157 X318(1) 157 Evidence 157IX Hearsay 157k315 Statements by Persons Other Than Parties or Witnesses 157k318 Writings 157k318(1)k.In General.Most Cited Cases In action commenced by town building inspector to enjoin property owners from conducting business forrepair of heavy equipment and related machinery,minutes of hearings held by town's zoning board of appeal on property owners'prior 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 • • applications for special permits were inadmissible as substantive evidence of statements that property owner or his attorney made before the board. **1151*932 Russell N.Wilkins,Hyannis,for defendants. Frank J.Shealey,Town Counsel,Chatham for plaintiff Before GRANT,CUTTER and WARNER,JJ. *928 RESCRIPT. This action,commenced in the Superior Court on June 11,1980,by the building inspector of Chatham,seeks to enjoin the Kendricks from conducting a"garage...**1152 for the repaiir...ofheavy equipment and related machinery"on Mrs. Kendrick's property situated(under the town zoning by-law)in a general business zone.A special permit is required ordinarily for such a use.After trial,Kendrick's operation was enjoined except as it came within the terms of a 1974 special permit issued to the Kendricks by the town's zoning board of appeal(the board).That permit specified that an addition to an existing building would be"used as a blacksmith shop...making ornamental iron work,...light decorative iron accessories,and the like,"and that repairs"to heavy equipment or machinery would not be carried on as any major portion of the proposed business use." In August, 1978,the building inspector wrote to Kendrick,referring to"complaints concerning the heavy equipment parked...on the property"and ordered that he cease work on such equipment other than as allowed*929 in the 1974 permit.He was asked to"appeal for the expansion of a nonconforming use."In October, 1978,Kendrick did apply for a special permit for"use of the premises as a garage...for the repair...of trucks and related machinery."The board denied this application in December, 1978.There was no appeal from this decision. On January 30,March 20,and June 11,1980,the building inspector directed the Kendricks to desist from further work in violation of the 1974 permit.In their answer to the complaint,the Kendricks asserted that the repairs done by Kendrick on construction equipment and commercial vehicles constituted"a nonconforming use established prior to the existence of zoning by-laws in...Chatham,"originally adopted by the town in 1954. [1]The trial judge heard this case in June, 1982,in part upon a stipulation of certain facts and in part upon conflicting evidence about Kendrick's past use of the premises. The burden is upon Kendrick to prove his defense that a nonconforming use existed.See Colabufalo v.Public Bldgs.Commit of Newton,332 Mass.748,751, 127 N.E.2d 564 (1955).It was not contended by Kendrick that he,at the time of trial(mid-1982),was not(1)making substantial repairs to commercial vehicles including bulldozers,graders,backhoes,and plows and(2)storing such vehicles on the premises until such repairs could be completed. The principal questions argued relate to the trial judge's admitting in evidence,over objection on behalf of Kendrick, the board's minutes of its meetings on January 9, 1974,and on November 29, 1978,as well as other documents then considered by the board.There was testimony at trial by Kendrick(and by witnesses called in his behalf)that Kendrick, although in regular employment for others prior to and immediately after 1954,did repair work on the premises on "nights,Sundays,holidays,[and]days off,"working thirty-five to sixty hours a week depending on the"volume of work and the type of jobs." 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 • [2]In his findings,rulings,and order for judgment,the judge relied on the minutes of the hearings before the board as showing(a)that in 1978 Kendrick or his counsel had"indicated[to the board]that the repair business had commenced on a part-time basis in 1965...after the enactment of the zoning by-law,"and(b)that no claim was made at either hearing • that the repair business was a pre-1954 nonconforming use,a contention which the judge clearly regarded as first asserted by Kendrick in the present action.With respect to the testimony of Kendrick and other witnesses about his use of the locus,before and shortly after 1954,the judge stated merely that,on all the evidence,he could not"conclude that the ...Kendricks have sustained their burden of proving that the repair of equipment and machinery was an established use of the premises prior tor. 1954."The judge did not state that he did not believe Kendrick and the witnesses called by him to show a pre-1954 nonconforming use.Instead,the judge referred to a statement in the minutes of the 1978 hearing, which was in*930 substance,"Kendrick has operated his shop,"on the basis of making repairs to what he considers to be light machinery,"at this location at least on a part-time basis **1153 since 1964."The judge in effect used this somewhat ambiguous statement in the 1978 minutes as establishing the truth of what was reported and as the basis for his conclusion"that the repair business had commenced on a part-time basis in 1965."It is not clear from the minutes to whom the statement was attributed by the author of the minutes,although it was probably attributed to Kendrick's then attorney,Mr.Hammett.Although present in court,Mr.Hammett was not called as a witness to state what his contentions • had been in 1978.There was improper and excessive use ofthe minutes of the 1978 hearing which requires reversal.The judge's use of the minutes was excessive in that he used them as substantive evidence that Kendrick or his attorney made before the board the statements attributed to one or the other of them. General Laws c.40A,§ 15,inserted by St.1975,c.808,§3,provides that the"board shall cause to be made a detailed record of its proceedings,indicating the vote of each member upon each question...and setting forth clearly the... reasons for its decision and of its official actions,copies of all of which"are to be filed with the"town clerk and shall be a public record."See also the open meeting law(GL.c.39,§2313,inserted by St1975,c.303,§3),reading in part (then and now despite various amendments),"A governmental body shall maintain accurate records ofits meeting,setting forth the date,time,place,members present or absent and action taken at each meeting,including executive sessions. The records of each meeting shall become a public record and be available to the public,"subject to a proviso not here relevant.General Laws c.66, §5A,as amended by St.1982,c. 83,most recently provided that the public records of meetings there mentioned"need not include a verbatim record of discussions at such meetings." The public records exception to the hearsay rule has been discussed in the Massachusetts decisions collected in Liacos, Handbook of Massachusetts Evidence,266,340-346(5th ed. 1981&Supp.1983),and Hughes,Evidence,§§611-612 (1961 and Supp.1981).See also 5 Wigmore,Evidence,§§ 1631-1632(Cbadboum Rev 1974);McCormick,Evidence, §§315-317,319-320(2d ed. 1972 and Supp.1978).We need not determine whether there has been some expansion of this common law exception in recent years.See Selectmen ofStockbridge v.Monument Inn,Inc., 14 MassApp.Ct.957, 438 N.E.2d 365(1982);Proposed Massachusetts Rules of Evidence, 104 and 803(8),as published in July, 1980.See also the extent to which administrative documents were considered in Shuman v.Aldermen of Newton,361 Mass.758, 767-768,282 N.E.2d 653(1972).Compare Amory v.Commonwealth,321 Mass.240,252-253,72 N.E.2d 549(1947), Kelly v.O'Ne14 1 Mass.App.Ct 313,319,296 N.E2d 223(1973).Proposed Rule 803(8),if it had been adopted,would have made admissible a wide range of public records*931"unless the sources of information or other circumstances indicate lack of trustworthiness." We think that the statutes just cited make public records,such as those required to be kept by the board,admissible to prove the specific matters which the statutes require expressly to beretorded,e.g.,the date of each meeting,the motions made,the vote upon each motion,the board members present and absent,and the reasons formally stated for each decision.Even findings by a zoning board,however,have no evidentiary weight.See Devine v.Zoning Bd of oflynr,332 Mass.319,321, 125 N.E.2d 131(1955);Dion v.Board of Appeals of Waltham,344 Mass.547,555, 183 N.E2d 479(1962).See also Lawrence v.Board of Appeals of Lynn,336 Mass.87,89,142 N.E.2d 378(1957).We do not decide whether such minutes may be used for some other purposes when supplemented by the testimony of persons present at the meetings recorded,or of the person who prepared the minutes,particularly ifthe minutes are shown to have been complete and prepared on the basis of a verbatim transcript or tape recording.r''•a We do not suggest that**1154 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. • 3 the Kendricks'1974 and 1978 applications to the board may not be evidence of the fact that there was an application for relief,unnecessary if the Kendricics had the benefit of a nonconforming use,without alleging the existence of that use. Kendrick%own testimony about the 1978 hearing was too ambiguous to amount to an admission that the minutes were accurate. FN2.The trial judge seems to have required no adequate inquiry from any member or employee of the board (as opposed to the town clerk as custodian of the board's records who bad no knowledge of their accuracy) concerning the trustworthiness of the minutes. Without adequate support in the evidence, the building inspector's brief inappropriately asserts that the minutes were prepared with the assistance of a tape recording of the proceedings at each meeting. We think that the minutes of the 1974 and 1978 meetings of the board are not admissible under CIL.c.233,§78,upon the facts reflected in this record,to prove the truth of the evidence before the board recorded in the minutes.See the discussion in Wingate v Emery Air Freight,385 Mass.402,405-407,408410,432 N.E.2d 474(1982),and cases cited. Upon a new trial,if evidence concerning a nonconforming use is presented,the trial judge should make explicit findings concerning whether such a pre-1954 use existed.It will be open on anew trial for the judge to consider(a)whether there has been excessive expansion of any nonconforming use since 1954(see the discussion in Powers v.Building Inspector of Barnstable, 363 Mass.648,652-653,296 N.E.2d 491 [1973], and Gamache v.Acuslmet, 14 Mass.App.Ct.215, 221-222,438 N.E.2d 82[1982]);and(b)whether and to what extent the Kendricks'failure to raise before the board in 1974 and 1978 the issue of nonconforming use,which they could then have raised,may be binding upon them in a de novo judicial review of the board's action in the present case.See Restatement(Second)of Judgments,§83(1982). Judgment reversed • • 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 C Supreme Judicial Court of Massachusetts,Norfolk. Nyman H.KOLODNY et al. v. BOARD OF APPEALS OF BROOKLINE et al.R4. FN;The other defendants are the building commissioner,William C.Berghaus,a building inspector,and,by intervention,James Lawrence,Jr.See the Bloom case,Mass., 191 N.E.2d 684. Argued May 9, 1963. Decided July 1,1963. Proceeding to review decision of town zoning board of appeals that it was without jurisdiction to hear an appeal from town building commissioner's denial ofrequest that building permits for construction of apartment buildings be revoked as violative of zoning bylaws.In the Superior Court demurrers were sustained by Tauro,J.,motion to amend was denied by Fairhurst,J.,and final decrees were entered by Sullivan,J.,and the plaintiffs appealed.The Supreme Judicial Court, Whittemore, J., held that the commissioner's decision was not an appealable decision notwithstanding additional allegations that the permits had been approved without authority in law. Interlocutory and final decrees affirmed. West Headnotes Zoning and Planning 414 X570 414 Zoning and Planning 414X Judicial Review or Relief 414X(A)In General 414k570 k.Decisions Reviewable.Most Cited Cases Town building commissioner's written decision,in response to request to revoke building permits previously issued,that the proposed apartment house complex for which the permits had been granted met the town building and zoning requirements was not an appealable"decision"notwithstanding additional allegations that permits had been approved without authority in law.M.GL.A.c.40A§§ 13,21. *286**690 Jack Ii.Backman,Boston,for plaintiffs. Lewis H.Weinstein,Boston(Lawrence A.Sullivan,Boston,with him),for Lawrence. Phillip Cowin,Town Counsel,for Board of Appeals of Brookline and others. Before*285 WILKINS,C.J.,and WHITTEMORE,CUTTER,SPIEGEL,and REARDON,JJ. ©2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 WHITTEMORE,Justice. This appeal under CIL.c.40A,§21,seeks review of the decision of the board of appeals that it had no jurisdiction of an appeal by aggrieved residents of the town of Brookline from the denial by the building commissioner of their request that he revoke the thirteen building permits referred to in Bloom v.Planning Bd.of Brookline,Mass.,191 N.E.2d 684, as violative of the zoning by-law. • The bill alleged that the permits were'approved'by the building inspector on March 27, 1962;the plaintiffs on April 10, 1962,requested in writing that the permits be revoked as granted unlawfully and in error;on April 26, 1962,the building commissioner,in writing,denied the request to revoke and the plaintiffs appealed to the board within ten days; the board denied the appeal,making findings and rulings.The request to revoke,the commissioner's response,and the board's decision are incorporated in the bill. Demurrers were sustained,and a motion to amend the bill was denied as was leave further to amend.The final decrees dismissed the bill.There was no error. In Atherton v. Selectmen of Bourne,337 Mass.250,258-259, 149 N.E.2d 232,we held that the building inspector's withdrawal of a'stop work order'by physically removing the order from the premises or orally informing the landowner that it was not in effect was not an'order or decision'from which an aggrieved neighbor could appeal under GL.c.40A, § 13.'*287 Dodge v.Inspector of Bldgs.of Newburyport,340 Mass.382,385-386, 164 N.E.2d 309,holds that the failure to appeal from the issuance ofapermit to build did not bar mandamus to require the inspector of buildings to stop the use of the building contrary to the zoningby-law;the issuance ofthe permit was not an'order or decision'from which to appeal as it did not show that a violation was in prospect and in any case the proceeding was one to compel enforcement of the zoning ordinance. See Van Arsdale v. Provincetown, 344 Mass. 146, 151, 181 N.E2d 597. In Williams v.Inspector of Bldgs.of Belmont,341 Mass. 188, 189-190, 168 N.E2d 2.57,the petitioners requested the inspector to stop the work which was going forward without a permit.We held that as no writing existed to establish the content of any order or decision,mandamus was not barred.Accord,Hinves v.Commissioner of Pub.Works of Fall River,342**691 Mass.54,56-57,172 N.E2d 232.In the Williams case,we said:'It may be thought somewhat arbitrary that questions of enforcement which will come before the local board of appeals if a permit is granted or denied will not reach the board if no permit is sought and the enforcing officer does not act.This,however,is not a necessary state of affairs.A provision in a by-law or ordinance for the filing of a request for enforcement and for formal action on the request could,it would seem,operate to cause an appealable decision: FNl.This section,as appearing in St.1955,c.325,§1,provides:'An appeal to the board of appeals established under section fourteen may be taken by any person aggrieved by reason of his inability to obtain a permit from any administrative official under the provisions of this chapter,or by any officer or board of the city or town, or by anyperson aggrieved by any order or decision of the inspector ofbuildings or other administrative official in violation of any provision of this chapter,or any ordinance or by-law adopted thereunder.A zoning ordinance or by-law may prescribe a reasonable time within which appeals under this section may be taken.' • Here the building commissioner decided the matter submitted to him by the request to revoke permits,and his writing is sufficient to show the substance of his decision,that is,that the'proposal[for which permits had been granted]meets the requirements ofthe building Code and Zoning By-Law of the Town ofBrookline.'But the defendants rightly contend that this was not a'decision'from which an appeal may be taken to the board of appeals*288 under CIL.c.40A,§ 13, for it is no more than a reaffirmation of the decision of March 27,1962,to issue the permits.The plaintiffs may not thus, in effect,modify the statutory provisions in respect of the issuance of permits.Nothing in the Atherton or Williams cases suggests a right of appeal from such a reaffirming of the issuance of permits.A decision to revoke the permits would, 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 of course,be in different aspect.It is not alleged that the appeal was taken within the time limited by the zoning by-law after the original decision of March 27, 1962,to issue the permits,nor is it contended that this could be alleged in an amendment.The bill,by alleging that the appeal from the denial of the request to revoke was within ten days,appears to recognize that the appeal period is ten days and the decision of the board also so indicates. The allegation that the building permits were approved by the building inspector'without the authority in law'and the assertion in the incorporated request to the commissioner to revoke the permits that the permits'[o]n their face***were not in fact approved by the Building Commissioner,as required by the Brookline Building Code adopted March 22, 1956,§207,'add nothing to the bill.Bloom v.Planning Bd.of Brookline. As there was no lawful appeal to the board,its ruling that it had no'jurisdiction over the appeal'was required in law. The defect disclosed by the original bill,and equally by the proposed amended bill,is fatal and nothing suggests that it may be cured by amendment. Interlocutory decrees affirmed. Final decrees affirmed. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 • Wdstlavu 65 N.E2d 537 Page 1 319 Mass.273,65 N.E.2d 537 (Cite as:319 Mass.273,65 N.E.2d 537) C Supreme Judicial Court of Massachusetts,Middlesex. BUILDING COM'R OF MEDFORD v. C.&H.CO. C.&H.CO. v BOARD OF HEALTH OF MEDFORD. March 6,1946. Suit by the Building Commissioner of Medford against the C.&H.Company to enjoin defendant from using a certain parcel of land for the dumping of garbage,ashes,and other household refuse unless such use is approved by board of aldermen and authorized by board of health;and proceeding by the C.&H.Company against the Board of Health of Medford for a writ of certiorari to quash the action ofthe board ofhealth revoking a permit to use a dump.From a decree in the first suit permanently enjoining the use of the dump without approval of board of aldermen and authorization by board of health and from a judgment dismissing the petition for writ of certiorari,the C.&H.Company appeals. Affirmed. West Headnotes (1]Zoning and Planning 414 C=18 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(A)In General 414k38 k.Hardship,Loss,or Benefit to Particular Persons.Most Cited Cases (Formerly 268k601,268k625) A landowner,even though he may be deprived by zoning ordinance of use of land that would be more profitable to him, has no just ground of complaint unless he shows that zoning ordinance as applied to him and his property is plainly arbitrary and unreasonable and has no rational relation to any of the purposes mentioned in statute authorizing zoning ordinance or to any of the purposes for which police power may be legitimately exercised.G.L.(Ter.Ed.)c.40,§25,as amended by St1933,c.269,§ 1(M.CiL.A.);M.G.L.A.Const.Amend.art.60. ]2]Evidence 157 '7 157 Evidence 1571 Judicial Notice 157k7 k.Qualities and Properties of Matter.Most Cited Cases The nature of refuse from dwelling is a matter of common knowledge. ®2010 Thomson Reuters.No Claim to Orig.1JS Gov.Works. • 1 65 N.E.2d 537 Page 2 319 Mass.273,65 N.E.2d 537 • [3]Zoning and Planning 414 C76 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(B)Regulations as to Particular Matters 414k76 k.Particular Uses.Most Cited Cases (Formerly 268k625) Zoning ordinance forbidding use of land as a public or private dump of refuse collected from dwellings without permit from building commissioner with approval of board of aldermen is not unreasonable or arbitrary.GL.(Ter.Ed.)c.40, §25,as amended by St.1933,c.269,§ 1 M.G.L.A.c.40A§2;M.G.L.A.Const.Amend.art.60. [4]Zoning and Planning 414€373.1 414 Zoning and Planning 414V111 Permits,Certificates and Approvals 414VIB(A)In General 414k373 Power to Grant 4I4k373.1 k.In General.Most Cited Cases (Formerly 4141(373,268k621) City bad right to safeguard public interest by requiring approval of board of aldermen before a permit should be issued for use of land as private or public dump.GL.(Ter.Ed.)c.40, §25,as amended by St.1933,c.269, § 1 (M.G.L.A.c. 40A§2);M.GLA.Const.Amend.art.60. [5]Zoning and Planning 414 X86 414 Zoning and Planning 414II Validity of Zoning Regulations 41411(B)Regulations as to Particular Matters 414k86 k.Permits and Certificates.Most Cited Cases (Formerly 268k621) Provision of zoning ordinance requiring approval of board of aldermen before a permit may be issued by building commissioner to use land for a private or public dump does not invade province of board of appeals or that of board of health.GL.(Ter.Ed.)c.40, §25,as amended by St.1933,c.269, § 1 (M.GLA.c.40A§2);M.GLA.ConstAmend. art.60. • [6]Municipal Corporations 268 t'607 • 268 Municipal Corporations 268X Police Power and Regulations 268X(A)Delegation,Extent,and Exercise of Power 268k607 k.Removal and Disposition of Garbage,Refuse,and Filth.Most Cited Cases Power of city to regulate use of land for public or private dump of refuse collected from dwellings does not spring from constitutional amendment authorizing enactment of legislation permitting municipal corporations to enact zoning 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 • 65 N.E.2d 537 Page 3 ' 319 Mass.273,65 N.E.2d 537 • • ordinances,but is part of police power of commonwealth which has been conferred on city.GL.(Ter.Ed.)c.40, §25, as amended by St.1933,c.269,§ 1;Const.Amend.art 60. [7]Municipal Corporations 268 X591 268 Municipal Corporations 268X Police Power and Regulations 268X(A)Delegation,Extent,and Exercise of Power 268k591 k.Delegation of Power by Municipality.Most Cited Cases Zoning and Planning 414 C=42 414 Zoning and Planning 41411 Validity of Zoning Regulations 4141I(A)In General 414k42 k.Standards Governing Conduct of Administrative Officials.Most Cited Cases Zoning ordinance forbidding use of land as public or private dump unless landowner secures permit from building commissioner and approval of board of aldermen adequately states principles for guiding the board and standards to be observed by the board. QL.(TeI.Ed.) c. 40, § 25, as amended by St.1933, c. 269, § 1 (M.G.L.A.); M.QL.A. Const.Amend.art.60. • [Si Zoning and Planning 414 X373.1 414 Zoning and Planning 414VIII Permits,Certificates and Approvals 414VIII(A)In General 414k373 Power to Grant 414k373.1 k.In General.Most Cited Cases (Formerly 414k373,268k621) Where zoning ordinance prohibited use of land for public or private dump without permit from building commissioner approved by board of aldermen,subsequent ordinance granting board of health power to make regulations for control of all dumping ofrefuse and for control of all places used for dumping ofrefuse did not leave board of aldermen without power under zoning ordinance to approve permits. QL.(Ter.Ed.) c.40, § 25, as amended by St.1933, c. 269, § 1 (M.QL.A.c.40A§2);M.QLA.Const.Amend.art.60. [9]Appeal and Error 30 C'1009(1) 30 Appeal and Error 30XVI Review 30XVI(I)Questions of Fact,Verdicts,and Findings 30XVI(I)3 Findings of Court 30k1009 Effect in Equitable Actions 30k1009(1)k.In General.Most Cited Cases In suit to enjoin use of land for dumping of refuse from dwellings without permit required by zoning ordinance,finding 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 65 N.E.2d 537 Page 4 319 Mass.273,65 N.E.2d 537 that casual and sporadic filling done prior to amendment of zoning ordinance to include dumps was not a prior existing nonconforming use,was not plainly wrong.GL.(Ter.Ed.)c.40,§25,as amended by St.1933,c.269,§1;Coast-Amend. art.60. 1101 Appeal and Error 30 01009(1) 30 Appeal and Error 30XVI Review 30XVI(I)Questions of Fact,Verdicts,and Findings 30XVI(I)3 Findings of Court 30k1009 Effect in Equitable Actions 30k1009(1)k.In General.Most Cited Cases In equity suit,where entire evidence is reported,decision based upon oral testimony will not be overturned unless plainly wrong. [11]Injunction 212 4C '109 212 Injunction 21211I Actions for Injunctions 212k109 k.Defenses.Most Cited Cases Zoning and Planning 414 6=779.1 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(B)Injunction Against Violation 4141079 Defenses 414k779.1 k.In General.Most Cited Cases (Formerly 4141079) The fact that city was dumping refuse on defendant's land without any permit did not bar city or its building commissioner from obtaining decree enjoining defendant from using land for dumping ofrefuse from dwellings without permit required by zoning ordinance.QL.(Ter.Ed.)c.40,§25,as amended by St.1933,c.269,§ 1 (M.GLA.c.40A §2);M.GLA.Const.Amend.art 60. [12]Zoning and Planning 414 x762 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(A)In General 414k762 k.Defenses to Enforcement.Most Cited Cases (Formerly 268k62I) The fact that some one else is violating provision of zoning ordinance regarding dumps furnishes no excuse or justification for a violation by defendant. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 65 N.E.2d 537 Page 5 319 Mass.273,65 N.E.2d 537 1131 Estoppel 156 c 62.4 156 Estoppel 156111 Equitable Estoppel 156111(A)Nature and Essentials in General 156k62 Estoppel Against Public,Government,or Public Officers 156k62.4 k.Municipal Corporations in General.Most Cited Cases (Formerly 156k62(4)) Estoppel 156 x62.5 156 Estoppel 156111 Equitable Estoppel 156111(A)Nature and Essentials in General 156k62 Estoppel Against Public,Government,or Public Officers 156k62.5 k.Acts of Officers or Boards.Most Cited Cases (Formerly 156k62(5)) Where bill was brought to enforce zoning ordinance provision regarding dumps for public welfare,building inspector who was charged with enforcement of ordinance was not estopped by alleged action of city or its officials in using dump. M.G.LA.c.40,§25,as amended by St. 1933,c.269,§ 1;Const.Amend.art.60. 1141 Municipal Corporations 268€'192 268 Municipal Corporations 268V Officers,Agents,and Employees 268V(B)Municipal Departments and Officers Thereof 268k192 k.Buildings.Most Cited Cases Building commissioner has no authority to enforce regulations of municipal board of health. 1151 Injunction 212 X114(2) 212 Injunction 212111 Actions for Injunctions 212k114 Parties 212k114(2)k.Complainants.Most Cited Cases Zoning and Planning 414(783 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(B)Injunction Against Violation 414k783 k.Parties.Most Cited Cases Bills for injunctions to enforce zoning ordinance are properly brought in name of the municipality. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 65 N.E.2d 537 Page 6 319 Mass.273,65 N.E.2d 537 [16]Environmental Law 149E X657 149E Environmental Law 149EXI11 Judicial Review or Intervention 149Ek657 k.Parties.Most Cited Cases (Formerly 199k19 Health and Environment) Injunction 212 x'114(4) 212 Injunction 212111 Actions for Injunctions 212k114 Parties 212k114(4)k.New Parties.Most Cited Cases Zoning and Planning 414 X783 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(E)Injunction Against Violation 4I4k783 k.Parties.Most Cited Cases Where defendant was using its land for a dump without permit from building commissioner in violation of ordinance and without permit from board of health,but building commissioner was sole plaintiff in suit for injunction,an amendment could be allowed substituting the city as party plaintiff so that city could enforce the zoning ordinance and regulation of board of health.G.L.(Ter.Ed.)c.231,§ 125(M.G.L.A.). [17]Injunction 212 C=204 212 Injunction 212W Writ,Order,or Decree 212k202 Writ or Order 212k204 k.Form and Requisites.Most Cited Cases A final decree granting permanent injunction should be as definite as circumstances allow in order that defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of any ambiguity in the decree. [18]Health 19811€ '356 198H Health . 19811I1 Public Health 198Hk355 Constitutional,Statutory,and Regulatory Provisions 198111356 k.In General.Most Cited Cases ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 • 65 N.E.2d 537 Page 7 319 Mass.273,65 N.E.2d 537 (Formerly 199k31 Health and Environment) In board of health regulation establishing a form for granting approval for use of land as a dump and permitting the depositing or dumping ofhouse dirt,rubbish and waste material,"rubbish"is synonymous with refuse and includes ashes produced in dwelling. • [19]Health 19811 X356 19811 Health 1981M Public Health 19811k355 Constitutional,Statutory,and Regulatory Provisions 198Hk356 k.In General.Most Cited Cases (Formerly 199k31 Health and Environment) Where board of health regulation,establishing form for granting approval for use of land as dump and permitting dumping of house dirt,rubbish and waste material,provided that no decomposing or offensive matter chal I be dumped, the dumping of garbage was prohibited. [20]Zoning and Planning 414€371 414 Zoning and Planning 414VBI Permits,Certificates and Approvals 414VLII(A)In General 414k371 k.Requirement in General.Most Cited Cases (Formerly 268k62I) Where zoning ordinance required permit from building commissioner with approval ofboard of aldermen for use ofland as a dump and board of health had authority to regulate dumping of refuse,a permit from board of health would not authorize landowner to maintain dump in violation of zoning ordinance without permit from building commissioner. G.L.(Ter.Ed.)c.40,§25,as amended by St.1933,c.269,§ 1 (M.G.L.A.);M.G.L.A.Const.Amend.art.60. [21]Health 19811 a366 198H Health • 1981111 Public Health 198Hk361 State and Local Boards,Districts,and Employees 19811k366 k Authority in General Most Cited Cases (Formerly 199k31 Health and Environment) Zoning and Planning 414€278.1 414 Zoning and Planning 414V Construction,Operation and Effect 414 V(C)Uses and Use Districts 414V(C)1 In General 414k278 Particular Terms and Uses 414k278.1 k In GeneraL Most Cited Cases 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 • 65 N.E.2d 537 Page 8 319 Mass.273,65 N.E.2d 537 (Formerly 414k278,268k601) The authority of aboard ofhealth to assign certain places for the exercise of an offensive trade or employment must yield to provisions of statute and ordinances pertaining to zoning.CIL.(Ter.Ed.)c.111,§143,as amended by St.1933,c.269, §2(M.G.L.A.). [22]Certiorari 73€9 73 Certiorari 731 Nature and Grounds 73k9 k.Discretion as to Grant of Writ.Most Cited Cases The writ of certiorari is not a writ of right,but its issuance rests in the sound discretion of the court. [23]Certiorari 73 e=17 73 Certiorari 73I Nature and Grounds 73127 k.Grounds in General.Most Cited Cases • Generally,where there is no showing of substantial injury or manifest injustice,writ of certiorari will not issue. [24]Health 19811 C' 380 19811 Health 1981111 Public Health 198Hk379 Judicial Review of Administrative Proceedings 198H080 k.In General.Most Cited Cases (Formerly 199k31 Health and Environment) Where zoning ordinance required that permit be obtained from building commissioner for use of land as dump but board ofhealth bad authority to control dumps,revocation ofpermit from board ofhealth without notice or hearing was without substantial injury or manifest injustice to landowner who did not have permit from building commissioner,and petition for writ of certiorari to quash action of board of health revoking permit was properly dismissed.M.G.L.A.c.111,§143, as amended by St 1933,c.269,§2. **539 Appeals from*274 Superior Court,Middlesex County;Brogna,Judge. Before*273 FIELD,C.J.,and LUMMUS,DOLAN,RONAN,and SPALDING,JJ.*276 A.C.York,City Sol.,and A. J.Kirwan,both of Medford,for Building Com'r and Board of Health of Medford. S.R.Wrightington;of Boston,for C.&H.Co. RONAN,Justice. ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 8 • 65 N.E.2d 537 Page 9 319 Mass.273,65 N.E.2d 537 The defendant in the first case has appealed from a final decree permanently enjoining**540 it from using a certain parcel of land for the dumping of garbage,ashes or other household refuse unless such use is approved by the board of aldermen and authorized by the board of health,but allowing it to fill in its land in any manner which is permitted by the zoning ordinance and which will not,in the judgment of the board ofhealth,make it a menace to health or property.The defendant in the first case as the*277 petitioner in the second case appealed from a judgment dicmissing its petition for a writ of certiorari seeking to quash the action of the board of health revoking a permit to use as a dump the same premises mentioned in the bill in equity. The city of Medford adopted a zoning ordinance in 1925 dividing the city into six districts.The C.&H.Co.purchased between 1928 and 1935 a large area of marsh land between Riverside Avenue and Mystic Valley Parkway in said Medford.This land has since the enactment ofthe zoning ordinance been located in aheavy industrial district where the buildings and land by virtue of section 9 of this ordinance may,subject to section 19,be used for any purpose except for dwellings or for thirty-nine specific industries like abattoirs,stockyards,rendering works,glue factories,tanneries and for use injurious to the safety and welfare of the neighborhood'because of any excessive nuisance qualities.'No permit for the use of land in this district for a junk yard,sand or gravel pit and for various other uses can be issued by the building commissioner until the application is approved by the board of aldermen.Section 19.This last section of the ordinance was amended on January 24,1935,so as to include'dumps,private or public,'among the uses for which the approval of the board of aldermen is required.A public hearing before the board of aldermen upon the application for a use of land for any of the purposes mentioned in section 19 is provided by section 20.The board may prescribe the conditions and terms upon which a permit is to be issued,which may be changed from time to time,and no permit is to be granted that would result in substantial injury. The board of health of Medford adopted a regulation prohibiting dumping without a permit from it,and subsequently an ordinance was enacted on December20,1938,giving to this board power to make rules and regulations for the control of all dumping of refuse and of all places used for the dumping of refuse,and requiring a permit from the board.The board on November 24, 1939,granted to the defendant in the first case,hereinafter called the defendant,a permit to dump on the parcel of land in question.The board of aldermen on February 6,1945,requested the board of health*278 to rescind this permit until the defendant had complied with the provisions of the zoning ordinance,which was in effect a request to revoke the permit because the defendant had not secured apermit from the building commiecioner approved by the board of aldermen.The permit was revoked by the board of health of February 16, 1945,without any previous notice to the defendant and without a hearing solely on the ground that the defendant was using its land for a dump without having obtained this approval of the board of aldermen and without determining whether such use of the land constituted a nuisance or a menace to health or property.The board of aldermen has never approved the granting of any permit by the building commissioner for the use of the land as a dump;the commissioner has not issued any permit,and the defendant has never applied for any permit from hint The judge found that the defendant's premises are low,marshy land,not now adaptable for ordinary use,that they are fit for a dump,and that dumping will make them more rentable for general land purposes and will increase their value. He also found that the defendant is conducting dumping on its land as a business,and that it has entered into a contract with the city of Somerville to dump house refuse collections on the land.The use made ofthe defendant's premises prior to the filing ofthe bill is fully described by the testimony.Oral evidence and also photographs indicated that rubbish and refuse,ashes,cans,garbage,paper bags and papers were deposited upon the defendant's land,together with coal slag, which is a good solid filling and was used to cover over the material that had been dumped.The city of Medford appointed a person to supervise the dumping and to see that all fires were out at four o'clock in the afternoon.The board ofhealth on February 2,1945,notified the defendant that,unless a portable water pipe line was installed within ten days, its permit would**541 be cancelled,and requested that all dumping be done by the reclamation or ditch method thereby eliminating fires.This portable water pipe line was never installed. 4)2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 9 • 65 N.E.2d 537 Page 10 319 Mass.273,65 N.E2d 537 *279 [1] The defendant contends that a zoning ordinance that requires it to secure a permit from the building commissioner,the granting ofwhich must first be approved by the board of aldermen,in order to fill its land,which must be filled before it can be put to any valuable use, is an arbitrary and unreasonable interference with its rights.The Legislature by virtue of art. 60 of the Amendments to the Constitution of Massachusetts has enacted legislation authorizing cities and towns to make zoning ordinances and by-laws'for the purpose of promoting the health,safety, convenience,morals or welfare of[their]inhabitants,' CIL.(Ter.Ed.)c.40, §25,as appearing in St.1933,c.269,§ 1, and they may for the aforesaid purposes by ordinance or by-law regulate the use of vacant land.A landowner,even though he may be deprived by these local enactments of a use of his land that would be more profitable to him,has no just ground of complaint unless he shows that the provisions of these ordinances or by-laws as applied to him and his property are plainly arbitrary and unreasonable and have no rational relation to any of the purposes mentioned in the statute or to any of the purposes for which the police power may be legitimately exercised.Euclid v.Ambler Realty Co., 272 U.S.365,47 S.Ct. 114,71 L.Ed.303,54 A.L.R. 1016;Nectow v.Cambridge,277 U.S. 183,188,48 S.Ct.447,72 L.Ed.842;Wilbur v.Newton,302 Mass.38, 18 N.E2d 365;Simon v.Needham,311 Mass.560,42 N.E.2d 516, 141 A.L.R.688;Pittsfield v.Oleksak,313.Mass.553,47 N.E.2d 930;Foster v Mayor of Beverly,315 Mass.567,53 N.E.2d 693, 151 A.L.X.737;Burlington v.Dunn,318 Mass.216,61 N.E.2d 243. [2][3]The defendant has not been absolutely prohibited from filling its land.The city has gone no farther than to forbid it to fill the land by using it as a public or private dump unless it has secured a permit from the building commissioner that has been approved by the board of aldermen and also a permit from the board of health.It is open to the defendant to fill in the land in any manner it sees fit,other than by means of a public or private dump.It cannot use its land for the deposit or refuse collected from dwellings without a permit from and board of health.The nature of refine of this character would seem to be a matter of common knowledge.The detrimental effect upon the inhabitants*280 of a city, their properties and the public welfare from the maintenance of a dump for the deposit of such refuse would also seem to be clear.The use of land for the purpose of dumping refuse from dwellings is a use that,if not a nuisance,has such harmful tendencies that unless guarded against a nuisance is likely to result.The characteristics of dumps and the effects that are likely to result from their maintenance appear from our own decisions.Johnson v.Somerville,195 Mass.370, 81 N.E.268, 10 L.R.A.,N.S.,715;Saperstein v.Everett,265 Mass. 195, 163 N.E.757;Gosselin v.Northbridge,296 Mass.351,5 N.E2d 573;Maynary v.Carey Construction Co.,302 Mass.530, 19 N.E.2d 304.Even if we lay aside considerations affecting the public health, as did the board of health in revoking the defendant's permit,we cannot disregard the nature of the material dumped,the probability of odors from burning material,the inconvenience from smoke and the danger of fire.Indeed,it would seem that the mere prevention of fire would justify the ordinance requiring the approval of the board of aldermen for the issuance of a permit by the building commissioner for use of this vacant land as site ofadump.Salem v.Maynes,123 Mass.372;Newton v.Belger,143 Mass.598,10 N.E.464;Commonwealth v.Badger,243 Mass. 137, 137 N.E.261; Selectmen of Saugus v.Mathey,305 Mass. 184,25 N.E2d 162;Thomas Cusack Co.v.Chicago,242 U.S.526,529,37 S.Ct. 190,61 L.Ed.472,L.R.A.1918A,136,Ann.Cas.1917C,594.We see nothing in the application of the zoning ordinance to the defendant's property,restricting the use of its property for a private or public dump for the deposit of material of the nature shown by this record,that unreasonably or arbitrarily interferes with the defendant's rights.The ordinance goes no farther than the protection of the common welfare requires. [4][5][6]The defendant contends that the city had no authority to adopt a zoning ordinance requiring approval of the board of aldermen before a permit may be issued by the building commissioner to use land**542 for a private or public dump,because the grant of such a power would interfere with the power possessed by the board of appeals by virtue of GL.(Ter.Ed.)c.40,§30,as amended.[See St.1945,c.167.]*281 The city,doubtless,could pass an ordinance providing for the granting of an exception by the board of appeals in reference to dumps,and a permit by the board of appeals would authorize the use of the land for this purpose.Lambert v.Board of Appeals of Lowell,295 Mass.224,3 N.E.2d 784.The city,however,was not bound to deal with the subject matter in such a manner. The zoning statutes, G.L. (Ter.Ed.)c.40,§§25-30A,inclusive,as amended,do not in terms forbid the reservation by the legislative branch of the city ofthe power to approve permits for dumps or for any of the other objectionable uses designated in section 19 of the zoning ordinance.The general plan ofthis ordinance is to prohibit these objectionable uses and to provide for a limitation of this prohibition by the granting of a permit by the building commissioner which has been approved by the board of 0 2010 Thomson Reuters.No Claim to Orig.'US Gov.Works. 10 65 N.E2d 537 Page 11 319 Mass.273,65 N.E2d 537 aldermen.The city in regulating the use of the defendant's land exercises a power specifically delegated to it by the Legislature by G.L.(Ter.Ed)c.40,§25,as appearing in St 1933,c.269,§1. This particular power does not spring from art.60 of the Amendments to the Constitution of Massachusetts but is a part of the police power of the Commonwealth which has been conferred upon the city. Burlington v.Dunn,318 Mass.216,61 N.E.2d 243. The city had the right to safeguard the public interest by requiring the approval of the board of aldermen before a permit should be issued for a dump,and the exercise of this power does not invade the province of the board of appeals or that of the board of health. Commonwealth v.Parks, 155 Mass.531,533, 30 N.E. 174;Commonwealth v.Cutter, 156 Mass.52,29 N.E. 1146; Commonwealth v.Hubley, 172 Mass.58,59,51 N.E.448,42 L.R.A.403,70 Am.St.Rep.242. The defendant has not applied to the plaintiff for a permit,and it will be time enough to decide what remedy it may have in the case of a refusal by the aldermen to approve the application for a permit [7] The granting or withholding of approval of a permit by the board of aldermen is not made dependent upon the untrammeled discretion of the board.The principles for guiding the board and the standards to be observed by the board are adequately stated in the ordinance with as much*282 certainty as the nature of the subject matter reasonably permits. Guinan v.Famous Players-Lasky Corp.267 Mass.501,515, 167 N.E.235;General Outdoor.Advertising Co.Inc.v. Department of Public Works,289 Mass. 149, 192, 193 N.E.799;Lexington v.Govenar,295 Mass.31,3 N.E2d 19; Commonwealth v.Hudson,315 Mass.335,341,342,52 N.E.2d 566;Federal Radio Commission v.Nelson Brothers Bond&Mortgage Co.289 U.S.266,285,53 S.Ct.627,77 L.Ed.1166,89 A.L.R.406;Bowles v.Willingham,321 U.S. 503,514,515,64 S.C.641,88 L.Ed.892. [8]The ordinance of December 20,1938,grantingthe board ofhealthpowerto make rules and regulations for the control of all dumping of refuse and for the control of all places used for dumping of refuse did not leave the board of aldermen without power under section 19 of the zoning ordinance to approve permits.Such a permit is necessary for the location or establishment of a dump.A permit from the board of health is required for the operation or maintenance of the dump. A citizen sometimes requires two permits to do a certain act or to make a particular use of his property.Commonwealth v.Ellis,158 Mass.555,33 N.E.651;Commonwealth v.McGann,213 Mass.213,100 N.E.355;Marchesi v.Selectmen of Winchester,312 Mass.28,42 N.E.2d 817. [9J[10]The Judge foundthat a comparatively small portion ofthe land has been casually and sporadically filled,and that such filling as was done prior to the amendment of the zoning ordinance on January 24, 1935,so as to include dumps, was not in fact or in law a prior existing nonconforming use.A careful examination of the testimony covering a period of a quarter of a century with reference to the times when materials ranging from broken bricks from an old brick factory which was located in the vicinity,and ashes to mud and peat excavated for the construction of the new Wellington Bridge in 1934 and 1935,were deposited on some portion of this lot of one hundred eighty-eight thousand square feet,together with other evidence tending to indicate that this land was not used for a dump until after 1935,does not demonstrate that the judge was plainly wrong in the finding**543 that the land was not then utilized for a nonconforming use.On an appeal in equity findings made by a judge upon oral evidence cannot be reversed unless*283 they are shown to be plainly wrong.Lowell Bar Association v.Loeb,315 Mass. 176,52 N.E.2d 27;Silbert v.Kerstein,318 Mass.476,62 N.E.2d 109.A finding permissible on the testimony is that the potentialities present in 1935 had in later years and prior to the filing of the bill developed into a full fledged dump. See Lexington v. Bean, 272 Mass.547, 172 N.E. 867; Marblehead v.Rosenthal,316 Mass. 124,55 N.E.2d 13;Burlington v Dunn,318 Mass.216,61 N.E.2d 243.Compare Cochran v.Roemer,287 Mass.500, 192 N.E.58;Building Commissioner of Medford v.McGrath,312 Mass.461,45 N.E.2d 265. [11][12][13]The fact that the city of Medford is dumping refuse upon the defendant's land without and permit does not bar relief on this bill in equity.The fact that some one else is violating the ordinance furnishes no excuse or justification 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 11 65 N.E.2d 537 Page 12 319 Mass.273,65 N.E.2d 537 for a violation by the defendant.Morley v.Police Commissioner of Boston,261 Mass.269,280,159 N.E.41.The bill is brought to enforce the zoning ordinance for the public welfare,Lincoln v.Giles,317 Mass.185,187,57 N.E.2d 554, and the building inspector who is charged with the enforcement of this ordinance is not estopped by the alleged action of the city or its officials,nor is the city itself.Brookline v.Whidden,229 Mass.485,492,493,118 N.E.981;Building Commissioner of Brookline v.McManus,263 Mass.270,274,160 N.E.887.A city should comply with its ordinances. 'It may rightly be expected to set an example of obedience to law.'Commonwealth v.Hudson,315 Mass.335,343,52 N.E.2d 566, 572. The defendant is not remediless if it really objects to dumping by the city. It has not filed any counterclaim or taken any other steps to protect its property.Kelley v.Board of Health of Peabody,248 Mass.165,169, 143 N.E.39;Suburban Land Co.Inc.v.Billerica,314 Mass. 184, 194,49 N.E.2d 1012, 147 A.L.R.660. [14][15][16]The defendant objects to the form of the decree on the ground that it is unable to understand what it is restrained from doing and especially whether it is restrained from permitting the dumping of ashes from dwellings. Before discussing that subject,it is necessary to point out that the building commissioner,who is the sole plaintiff;has no authority to enforce the regulations of the board of health,Mayor of Cambridge v.Dean,300 Mass.174, 14 N.E.2d 163, and bills for injunctions to enforce zoning ordinances are usually and properly brought in the name of the municipality.Worcester*284 Board of Health v.Tupper,210 Mass.378,96 N.E. 1096;Lexington v.Bean,272 Mass. 547, 172 N.E.867.This suit has been fully and fairly tried.It appears that the defendant is using its land for a dump without any permit from the building commissioner and in the absence of a permit from the board of health.It the bill is amended by substituting the city as a party plaintiff for the building commissioner,the city can enforce the zoning ordinance and the regulation of the board of health.The suit is one where such an amendment may well be allowed as is hereinafter provided.The case is considered on the assumption that such an amendment will be made.G.L.(Ter.Ed.) c.231,§ 125;Thayer Academy v.Assessors of Braintree,232 Mass.402,122 N.E.410;Bauer v.Mitchell,247 Mass. 522, 142 N.E. 815;New England Foundation Co. Inc. v. Elliott A. Watrous, Inc.,306 Mass. 177,27 N.E.2d 756; Tompkins v.Sullivan,313 Mass.459,48 N.E.2d 15. We do not agree with the defendant that the violation of the health regulation is not in issue because the permit was revoked solely in compliance with the request of the board of aldermen.The defendant,as hereinafter appears in dealing. • with the petition for a writ of certiorari,has no just ground to quash the revocation of that permit.The bill alleges and the evidence proves that the defendant was maintaining a dump without a permit from the board of health.That is one of the matters involved in the present controversy and should now be settled. [17][18][19]A final decree should be as definite and certain as the circumstances allow in order that a defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of any ambiguity in the decree.MacCormac v.Flynn,313 Mass.547,550,48 N.E.2d 24;Carroll v.Hinchley,316 Mass.724, 731,56 N.E2d 608;J.I.Case Co.v.National Labor Relations Board,321 U.S.332,341,64 S.Ct.576,88 L.Ed.762. The first paragraph of the final decree enjoined the defendant from using its land'for the purpose of dumping garbage, ashes or other household refuse,unless such use shall have received the approval of the**544 board of aldermen and the authorization of the board of health,' and the second paragraph provided that nothing in the first paragraph*285 should be construed as preventing the defendant from making deposits on or filling in its land in any manner permitted by the zoning ordinance or in any manner that will not in the judgment of the board of health make it a menace to health or property.The defendant in so far as the present suit is concerned,is not to be restrained from making any use of its land that is not forbidden by sections 19 and 20 of the zoning ordinance and section 16 of the regulations of the board of health.The relief granted should be measured by the ordinance and the regulation.As to the first paragraph,it should be noted that the land cannot be used for a dump without a permit from the building commissioner and that,other than conditions that might be attached to this permit,the control over the dump is to be exercised by the board of health,and this includes the nature of the material dumped upon the land and the manner in which the work is done.The regulation of the board of health, section 19, establish a form for granting approval for the use of land as a dump permits the ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 12 65 N.E.2d 537 Page 13 319 Mass.273,65 N.E.2d 537 'depositing or dumping of house dirt,rubbish and waste material"'provided that no decomposing or offensive matter shall be dumped.'Rubbish in this regulation is synonymous with refuse,and lilre the term refuse should be construed to include ashes produced in dwellings.Vandine,petitioner,6 Pick.187, 17 Am.Dec.351;Haley v.Boston,191 Mass. 291,293,294,77 N.E.888,5 L.R.A.,N.S., 1005.The dumping of garbage is prohibited by the said regulation in its present form. The plaintiff is given leave,if so advised,within thirty days after the date of the rescript,to apply to the Superior Court for an amendment to his bill substituting the city as plaintiff.It such amendment is not made,a final decree is to be entered enjoining the defendant from using its land as a private or public dump without a permit from the plaintiff,if such amendment is made,the final decree is to be modified by striking out all of that portion of the first paragraph after the words'within the city of Medford'and by substituting therefor the following: 'as a private or public dump without a permit from the building commissioner,the issuance of which has been approved by•286 the board of aldermen,or as a dumping ground for any decomposing or offensive matter;or for the dumping ofhouse dirt,rubbish and waste material without a permit from the board of health.'The second paragraph of that decree is to be struck out. So ordered. [20][211122][23][24]The petitioner's appeal from the judgment dismissing its petition for a writ of certiorari requires little discussion in view of what has already been said.The petitioner had no permit from the building commissioner and without it cannot use its land as a site for a dump.In these circumstances,a permit from the board of health would not authorize the petitioner to maintain the dump. That permit did not authorize it to violate the zoning ordinance. Commonwealth v.Fenton, 139 Mass. 195,29 N.E.653;Commonwealth v.Ellis, 158 Mass.555,33 N.E.651;Milton v. Donnelly, 306 Mass. 451, 28 N.E2d 438; Lincoln v. Giles, 317 Mass. 185, 57 N.E.2d 554.At the time of its revocation without notice to the petitioner or a hearing the permit was inoperative although outstanding and for aught that appears in the record it might never become operative. A zoning ordinance, in one instance at least, is to be considered superior to a health regulation.The authority of a board of health to assign certain places for the exercise of an offensive trade or employment must yield to the provisions of the statutes and ordinances pertaining to zoning.GL. (Ter.Ed.)c. 111, § 143,as appearing in St.1933,c.269, §2.Lincoln v.Murphy,314 Mass. 16,49 N.E.2d 453, 146 A.L.R.1196.The writ does not issue as matter ofright but rests in sound judicial discretion.It is the general rule,where, as here,there is no showing of substantial injury or manifest injustice,that certiorari will not issue.Boston v.White Fuel Corp.294 Mass.258, 1 N.E.2d 186;Mullholland v.State Racing Commission,295 Mass.286,3 N.E2d 773;Walsh v.Justice of District Court of Springfield,297 Mass.472, 9 N.E.2d 555.The revocation of the permit results in no hardship to the petitioner unless and until it has complied with the zoning ordinance.See Vorenberg v.Bunnell,257 Mass.399,408,153 N.E.884,48 A.L.R.1431;Jenney v.Hynes,282 Mass.182,194,184 N.E.444;Brackett v.Board of Appeal of Boston,311 Mass.52,57,39 N.E.2d 956. Judgment affirmed. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 13 WWstlavu 862 N.E.2d 393 Page I 68 Mass.App.Ct.358,862 N.E2d 393 (Cite as:68 MassApp.Ct.358,862 N.E.2d 393) Appeals Court of Massachusetts, Franklin. TOWN OF ORANGE ENI • FN1.By and through its building inspector,Brian Gale. v. Joseph SHAY,Jr.,&another. • FN2.Michael Generazio. No.06-P-439. Argued Nov.16,2006. Decided March 2,2007. Background:Town brought action against landowner,seeking permanent injunction to prevent landowners from further removing gravel or other material,including topsoil,from their property on grounds of nonconforming use.Following a bench trial,the Superior Court Department,Franklin County,Mary-Lou Rup,J.,ordered the injunction,and landowners appealed. Holding:The Appeals Court,Lenlc,J.,held that landowners'predecessor-in-interest had abandoned nonconforming use of the property. Affirmed. West Headnotes [I]Zoning and Planning 414 4 .337 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 414k337 Ic Cessation of Use.Most Cited Cases Landowners'predecessor-in-interest abandoned nonconforming gravel and sand removal use of the property,regardless 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 1 Westlaw. 862 N.E.2d 393 Page 2 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) of whether that use involved entire parcel or only a portion of the parcel,as predecessor's operations ceased altogether over 40 years before landowners began their permitless sand and gravel removal operation.M.GLA.c.40A,§6. • • [2]Zoning and Planning 414 C=336.1 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 4141336.1 k.In General.Most Cited Cases Abandonment of a prior nonconforming use requires the concurrence of two factors:(1)the intent to abandon and(2) voluntary conduct,whether affirmative or negative,which carries the implication of abandonment M.GL.A.c.40A, §6. [3]Zoning and Planning 414 X337 414 Zoning and Planning 414VI Nonconforming Uses 414k336 Discontinuance or Abandonment 414k337 k.Cessation of Use.Most Cited Cases While abandonment can happen momentarily,without the lapse of any stated period of time,the phrase"not used,"as the Legislature employed it in the Zoning Act's abandonment provision, contemplates a simple cessation of a nonconforming use for a period of at least two years.M.G.L.A.c.40A,§6. [4]Zoning and Planning 414 0337 414 Zoning and Planning 414VI Nonconforming Uses 4141336 Discontinuance or Abandonment 4141337 k Cessation of Use.Most Cited Cases Where the lapse of time following the cessation of the nonconforming use is so significant that abandonment exists as a matter of law,evidence of things done or not done carries the implication of abandonment and supports a finding of intent to abandon the nonconforming use,whatever the avowed state of mind of the owner.M.GLA.c.40A,§6. **393 Scott Graves,Gardner,for Joseph Shay,Jr. Donna L.MacNicol,Greenfield,for the plaintiff **394 Present:LENK,SMITH,&COHEN,JJ. • LENK,J. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 2 • Westi w. 862 N.E.2d 393 Page 3 68 Mass.App.Ct 358,862 N.E2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) *358 Judgment entered after a bench trial permanently enjoining the defendants, Joseph Shay, Jr., and Michael Generazio,from further removing gravel or other material,including topsoil,from their property located at Holtshire Road in Orange(town).r"On appeal,the defendants claim that their current gravel*359 and sand removal operation is protected from the town's zoning by-law as a prior nonconforming use that was never abandoned.They contend that, in determining otherwise,the judge erred in certain of her rulings of law and made findings of fact that were clearly erroneous.We affirm. FN3.This case is a consolidation of the defendants'appeal from a town zoning board of appeals decision(CIL. c.40A,§17)and from the town's enforcement order(CIL.c.40A,§7).The building inspector originally issued a cease and desist order on March 13,2002.The defendants then appealed the order to the town's zoning board of appeals,which upheld the order;the defendants appealed to the Superior Court.When the defendants refused to cease and desist their operation,the town Sled a complaint in the Superior Court as well as a motion for a preliminary injunction;this motion was denied on June 24,2003.The defendants subsequently halted the operation pursuant to a cease and desist order from the town conservation commission and the Department of Environmental Protection for violations ofthe Wetlands Protection Mt.CIL.c.131,§40.In November,2003, however,the defendants resumed their operation and the town renewed its motion for a preliminary injunction. Before the judge issued his decision,the parties agreed that the defendants would cease operations until a trial on the merits.The defendants'appeal from the decision of the zoning board of appeals was consolidated with the town's complaint,and a trial on the merits was held on September 27 and 28,2004.The issues in both actions are the same. Background.At issue in this case is an approximately eight-acre portion(the parcel)of twenty-three acres of property located in Zoning District C.The defendants'predecessorintitle,Ronald Hurlburt,inherited the propertyfromhismother in 1944 and sold it to the defendants in 2000.The parcel was originally used by the Hurlburt family for pasture and a hay field.Around 1935,Hurlburt began a small sand and gravel removal operation in the rear northeast section of the parcel in conjunction with his farming activities(the original sand and gravel operation).The use expanded considerably in the period from 1957 to 1958,and the parties offered conflicting evidence as to the extent of such use thereafter.Prior to 1981,Hurlburt's use of the parcel for gravel removal did not violate any town zoning ordinance;on August 24,1981, however,the town amended its by-law to require a special permit for earth removaL After the defendants acquired the property in 2000,they began a sand and gravel operation on the entire parcel,which involved removing topsoil,trees, shrubs,and vegetation from the property.The defendants did not obtain a special permit for that purpose.Complaints from neighbors about increased traffic from trucks and heavy equipment,as well as an abundance of noise,dirt and dust in the area,set in motion the legal proceedings described above.' FN4.See note 3,supra 1.The defendants'cam At trial,Hurlburt,his long-time*360 neighbor Ronald Stone,and the defendant Shay testified to the following.Although part of the parcel was used as pasture and ahay field,in 1935 Hurlburtbeganthe original sand and gravel operation on approximately one acre of the parcel;this operation continued to varying degrees over the next two**395 decades.From 1957 to 1958,Hurlburt greatly expanded his sand and gravel operation to include the entire parcel in order to meet the demand for materials occasioned by the reconstruction of a nearby portion of Route 2.This necessitated the removal of all trees and the use of dump trucks,front-end loaders,bulldozers,scraper/loader pans,and tractors on the parcel during the daylight hours.INS After 1958,the sand and gravel operation continued on the entire parcel,except for a small portion of land in the front,up until the time the parcel was sold to the defendants;the scope of the sand and gravel operation ebbed and flowed in response to demand,but was never abandoned. 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 3 Westlaw. 862 N.E.2d 393 Page 4 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 MassApp.Ct.358,862 N.E.2d 393) FN5.Hurlburt testified that he sold all his cows in 1957 and 1958 in order to use the parcel solely for gravel removal: 2.The town's case.Phyllis Kingsbury,Pauline Bixby,Thomas Pearson,Alana and Thomas Cox,Thomas Forest,and Larry Hurlburt, all of whom had lived in the area for many years,testified as follows for the town.Although the original sand and gravel operation was in place to varying degrees over the years,gravel removal even in 1957 and 1958 did not extend to the entire parcel but rather was limited to a small portion in the northeast and east rear part of the parcel (the 1957-1958 operation)'7;the remaining land in the front of the parcel was always wed as a pasture or hay field. Before the defendants started their gravel operation,trucks infrequently(about once each year)drove to the rear of the parcel,presumably to obtain sand and gravel;after 2001,however,traffic increased to about fifty tucks entering and leaving the parcel on a daily basis from about 7:00 A.M.until about 6:00 P.M.r"A high level of noise resulted from the operation of heavy equipment,including*361 excavators,dump trucks,and bucket loaders,and sand and dust blew onto neighboring property. FN6.Larry Hurlburt is the son of Ronald Hurlburt. FN7.The exact dimensions of the 1957-1958 operation are not in the record,but it appears from the town witnesses'testimony that it did not come close to involving the entire parceL • FN8.The defendant Shay testified,in contrast,that traffic was limited to seven or eight trucks per day,"doing about eight or[nine]loads apiece." 3. The judge's ruling. 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.20,23,217 N.E.2d 726(1966),and Powers v.Building Inspector of Barnstable, 363 Mass. 648, 653, 296 N.E.2d 491 (1973), and was thus an impermissible expansion of a prior nonconforming user'She went on**396 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. FN9.The judge had before her,among other exhibits,photographs ofthe parcel in the 1960's showing a pasture and a horse grazing,as well as pictures taken in 2002 showing the extent of defendants'use of the parcel. FNI 0.General Laws c.40A,§6,provides protection in the form of exemption from subsequently enacted zoning ordinances for any prior nonconforming use that does not substantially extend that use to the detriment of the neighborhood.Our case law has applied a three-pronged test outlined in Bridgewater u Chuckran,351 Mass.at 23,217 N.E.2d 726,and Powers v.Building Inspector of Barnstable,363 Mass.at 653,296 N.E2d 491,to make the requisite determination."Under that test,we inquire:(1)'Whether the[current]use reflects 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 4 Westlaw . 862 N.E.2d 393 Page 5 68 Mass.App.Ct.358,862 N.E2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) the"nature and purpose"of the[prior]use,'(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." ' "Derby Ref Co. v. Chelsea, 407 Mass. 703,712, 555 N.E.2d 534 (1990),quoting from Bridgewater v. Chuckran,supra. Discussion.We must accept"the trial judge's findings of fact unless they are clearly erroneous."Tamerlane Realty Trust v. Board of Appeals ofProvincetown, 23 Mass.App.Ct 450, 453, 503 N.E.2d 464 (1987). "A finding is 'clearly erroneous'when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed"J.A.Sullivan Corp.v.Commonwealth,397 Mass.789, 792,494 N.E.2d 374(1986),quoting from United States v. United States Gypsum Ca,333 U.S.364,395,68 S.Ct.525, 92 L.Ed.746(1948).When the trial judge has seen and heard the witnesses,we may revise the findings*362 of the judge "only in a very clear and exceptional case."Spiegel v.Beacon Participations,Inc.,297 Mass.398,407.408,8 N.E.2d 895(1937),quoting from Thomas v.Beals, 154 Mass.51,52,27 N.E. 1004(1891)."[C]redibility of a party or other witness who appeared at trial is quintessentially the domain of the trial judge,in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings."Johnstone Johnston,38 Mass.App.Ct. 531,536,649 N.E.2d 799(1995).No such showing has been made here.Further,while it has not been made to appear that the judge erred in her application of the Bridgewater v. Chuckran test to the facts she found,we need not reach or address the point given the extinguishment of the prior use. [1] The trial judge was correct to conclude as matter of law that, even if it were to be assumed that the 1957-1958 operation had involved the entire parcel,Hurlburt had nonetheless abandoned that use after 1958.Thn • FN11.Although the defendants contend that the issue of abandonment was not before the judge,they are incorrect The defendants argued at trial that the 19574958 operation involved the entire parcel and was never abandoned,and the judge acted appropriately in ruling on that issue. The town's amended zoning by-law,enacted in 1981,provides that"[a]nonconforming use which has been discontinued for two or more years shall not be re-established, and all future use shall conform to this bylaw."The 1981 by-law required a special permit for all earth removal activities,with the exception of three limited circumstances not applicable here. Whatever the extent of the 1957-1958 operation,use to such an extent was nonrecurring thereafter,i.e.,gravel removal use of that magnitude had been discontinued for two or more years by around 1960.The prior nonconforming use was thus extinguished by nonuse for two or more years. We recognize, however, that although the trial judge used the terms "discontinuance" and "abandonment" interchangeably,the terms are in fact distinct,and this interchangeable use of the terms may have engendered some confusion.While the outcome here remains unaffected,clarification may be useful. Prior to enactment of the Zoning Act, G.L. c. 40A, in 1975, our case law construed the terms "abandoned" and "discontinued" as being synonymous. **397 Whether a particular municipal *363 zoning ordinance provided for extinguishment of nonconforming uses by use of the term"abandoned"or"discontinued"was of no moment since the terms were deemed interchangeable.See Pioneer Insulation&Moderniz ing Corp.v.Lynn,331 Mass.560,564-565,120 N.E.2d 913 (1954). See generally Alper & Woodward, Ka-Hur Enterprises, Inc. v. Zoning Board of Appeals of Provincetown:Extinguishment of Non-Conforming Uses,42 Boston Bar J.8(January/February 1998). 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 5 Westlaw. 862 N.E.2d 393 Page 6 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E2d 393) [2][3]Since 1975,however,the Zoning Act has permitted municipalities to"define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more."GL.c.40A,§6,as appearing in St1975,c. • 808, § 3. Inso doing, the Legislature provided two separate avenues by which a prior nonconforming use can be extinguished:(a)abandonment and(b)a period of nonuse of two or more years.The two concepts were thus no longer interchangeable. See Ka-Hur Enterprises,Inc v.Zoning Bd of Appeals of Provincetown, 424 Mass.404,406,676 N.E.2d 838 (1997)r"'s;Bartlett v. Board of Appeals of Lakeville, 23 Mass.App.Ct 664, 668-669, 505 N.E2d 193 (1987).Abandonment requires"the concurrence of two factors,(I)the intent to abandon and(2)voluntary conduct, whether affirmative or negative,which carries the implication of abandonment"DialAway Co.v.Zoning Rd ofAppeals ofAuburn,41 MassApp.Ct.165,172,669 N.E.2d 446(1996),quoting from Derby Ref Co.v.Chelsea,407 Mass.703, 708,555 N.E2d 534(1990):While abandonment can happen"momentarily,without the lapse of any stated period of time,"the phrase"not used,"as the Legislature employed it,contemplates"a simple cessation of a nonconforming use for a period of at least two years."Bartlett v.Board of Appeals of*364Lakeville,supra at 669,505 N.E.2d 193.See Davis v.Zoning Bd of Chatham,52 MassApp.Ct.349,353 n.9,754 N.E.2d 101 (2001). FN12.In Ka-Hur, the court acknowledged that,since the enactment of G.L. c.40A, § 6,it had issued two opinions,Derby Ref.Co.v. Chelseq 407 Mass.703,555 N.E.2d 534(1990),and Cape Resort Hotels,Inc v. Alcoholic Lic. lid of Falmouth, 385 Mass. 205, 431 N.E.2d 213 (1982), that equated"abandoned"with "discontinued."Ka-Hur v. Zoning Bd of Appeals of Provincetown, supra at 406-407,676 N.E.2d 838.The court distinguished its decisions in both those cases,concluding that Cape Resorts involved a pre-Zoning Act by-law and a conveyance,while in Derby Ref. Co.,the municipality argued that the use had been abandoned. Ibid The court stated that"our statement in Derby Ref. Co.should not be read to require an abandonment in order to extinguish a nonconforming use,but rather as a reaffirmation that abandonment is simply one of the • two ways in which a nonconforming use can be extinguished."Id at 407,676 N.E2d 838. [4]As earlier discussed,regardless of the extent of the prior nonconforming use in this case,it was extinguished by discontinuance in or about 1960. Unlike the 1981 town zoning by-law, which allowed for extinguishment only by discontinuance, the 2000 by-law-also applicable here-added abandonment as another method by which a prior nonconforming use can be terminated.' In view of this,the judge correctly concluded that use of the entire parcel for gravel and sand removal had been abandoned.Where"the lapse of time following the[cessation of the nonconforming use]...is so significant that abandonment exists as a matter of law...[,]'evidence of**398 things done or not done... carries the implication of abandonment...land][s]upports a finding of intent,whatever the avowed state of mind of the owner....'"Dial Away Co.v.Zoning Bei ofAppeals ofAuburn,41 Mass.App.Ct.at 172,669 N.E2d 446,quoting from Dobbs v.Board ofAppeals of Northampton,339 Mass.684,686-687,162 N.E.2d 32(1959)(twenty-three years after cessation of activity).The 1957-1958 operation,whether involving only the northeast and eastrearportions of the parcel, or extending to the entire parcel,ceased altogether in 1958,and the passage ofoverfortyyears carries a clear implication of abandonmentfl14 FN13. The 2000 town by-law reads, in relevant part "[a] nonconforming use which has been abandoned, discontinued for a period of two years...or changed to a conforming use,shall not be re-established and any further use of the premises shall conform with this By-law." FN14.We note that there was some evidence that gravel removal continued on the one-acre site of the original operation,perhaps until the defendants bought the property.Although it is possible that the defendants could continue to use that small gravel pit,see Burlington v.Dunn,318 Mass.216,223,61 N.E2d 243,cert.denied, 326 U.S.739,66 S.Ct.51,90 L.Ed.441(1945),we decline to address the point because the defendants have ®2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 6 Wdstlaw. 862 N.E.2d 393 Page 7 68 Mass.App.Ct.358,862 N.E.2d 393 (Cite as:68 Mass.App.Ct.358,862 N.E.2d 393) not argued it and apparently make no claim as to that acre. Because the prior nonconforming use was extinguished by both abandonment and discontinuance,we need not address the question whether the current use of the parcel is a permissible extension of that use.See Oakham Sand&Gravel Corp.v. Oakham,54 Mass.App.Ct.80,84,763 N.E2d 529(2002). Judgment affirmed 0 2010 Thomson Reuters.No Claim to Orig.US Gov.Works. 7 TOWN OF YARMOUTH BOARD OF APPEALS HEARING NOTES Petition# 4210 Petitioner: 1A"ltl/1nae,b Hearing Date: It"I 1 u I 0 9 REQUEST: SPECIAL PERMIT: § VARIANCE: § Overturn B.I. Members of the Board present and voting. Prt0�� I AP \d /ok 1V �c.�c)nor; iv \ [J u? (T;ituyok) It appearing hat notic of said hearing has beeki diven by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Register the hearing was opened and held on the date first above written IN FAVOR rN`` OPPOSED SED 041P-r\-us u-thi.Q Lcer�5 L b1 , ice„- I°P�+�eQi PI Q.o (�c7e 1).1�\\1 �w 1\kkr�cDiyakot r fir.. R� cbA - cat.\ SkS 6rruscc23e., to `wog — w ,-(� Reason for the Decision: L. � C 7 LAsic-Q,c I b-„Ln 3 , L 'MI en:A to 17-S Motion by: J t4 2 Seconded by: an-- Vote: it— Mu) • 4,00 p, Members voting in favor:,►P.Sawn v %,,A4 Opposed: Th Z 4/1•-a.— Therefore,the SPECIAL PERMIT VARIANCE APPEAL is GRANTED DENIED WITHDRAWN CONTINUED TO: lit SI,/O CONDITIONS: EXHIBITS RECEIVED AT HEARING: CLERK: Date: CLERK-CHAIRMAN HEARING NOTES b -. ' ' TOWN OF YARMOUTH BOARD OF APPEALS HEARING NOTES Petition# ZACS Petitioner: tiLA-024 CD Hearing Date: (012_2_107 REQUEST: SPECIAL PERMIT: § VARIANCE: § Overturn B.I. Members of the Board present and voting. It appearing that notice of said hearing has been given by sending notice thereof to the petitioner and all those owners of property deemed by the Board to be affected thereby and that public notice of such hearing having been given by publication in the Register the hearing was opened and held on the date first above written. IN FAVOR OPPOSED .b.4\ Au, 2e essuw T50-1 Cbtrt'l Reason for the Decision: Motion by: Seconded by: Vote: • Members voting in favor: Opposed: Therefore,the SPECIAL PERMIT VARIANCE APPEAL is GRANTED DENIED WITHDRAWN CONTINUED TO: (�I(0(07 CONDITIONS: N..,)--‘N ON) — ron \N'2 t I-7At0 1 Al I Clerk: Date: • CLERK HEARING NOTES -ZBA • ' Search- 100 Results-30 day appeal period for building permits Page 1 of 9 LexisNexis Total Research System ewatlh crani I ptnAvurc.o I Stan Ota I[VFW My Lexis'* Search Research Tasks'Get a Document`Shepard'aelkAlerts Total Litigator Transactional AdvlsoritCounaei Selector, Uv.hr I 4**r1,g1 FOCUS"*Terms{ 'Search Wthln orginal;teaks(d•10e) ;"pigs Advanced [TM nelues-IWW)\ C.ws•(tee) Source: Combined Source Set T("t[•MA State Cases,Combined Terms: a0 day appeal period for building permits (Ell Search I Buagest Terms for My Seidl l Feedback on Your Search) iSelect for FOCUS".or Delivery 0 18 Mass.App. Ct.471, 5;468 N.E.2d 271, **; _ 1984 Mass.App. LEXIS 1729, *** CAROLYN M.VOICES&another'v AVERY W.LOVELL,INC. (and a companion case 2) I James Boucher. aThe companion case Is between the same parties. [NO NUMBER IN ORIGINAL] Appeals Court of Massachusetts,Plymouth 18 Mass.App. Ct.471;468 N.E.2d 271; 1984 Mass.App. LEXIS 1729 lune 14,1984,Argued August 17,1984,Decided PRIOR HISTORY: [***i] Civil actions comm enced in the Superior Court Department on February 17,1982. The cases were heard by Keating,I. DISPOSITION:So ordered. CASE SUMMARY PROCEDURAL POSTURE:Plaintiff residents filed an action against defendant business owner to enforce a variance for a nonconforming use of the business owner's property.The Superior Court Department(Massachusetts)enjoined the business owner from expanding the variance by garaging or maintaining eighteen-wheel vehicles or allowing such vehicles on the property and using its garage for the storage of commercial vehicles and equipment.The business owner appealed. OVERVIEW:The business owner received a variance to operate a cesspool business in a residential zone.Later,a new zoning law was adopted,and the operations became a nonconforming use.The building Inspector sent a written response denying the residents'requests to enforce the variance and granted the owner a permit to build a second ga rage for storage of vehicles.The appeals board upheld the Issuance of the permit and denial of the residents'stop order requests.The business owner argued the trial court lacked jurisdiction;the residents argued its appeal was timely.The court held(1)the trial court had jurisdiction under Mass.Gen. I aws eh.40A.56 7 15,22 because the date of the Inspector's written denial was the operative event,the appeal to the board was within 30 days thereafter,and the action was flied within 20 days from the board's decision;(2)construction of the second garage was an unlawful expansion of a nonconforming use under the three-part test in exceeding the scope of the variance,which confined use of the property to a cesspool business;and(3) storage of the 18-wheel vehicles was a substantively different use from the authorized business. OUTCOME:The court affirmed the trial court's grant of an Injunction,vacated the injunction language enjoining the business owner from garaging or maintaining 18-wheel vehicles or allowing the same on his property,and remanded to the trial court for the devising of new relief. CORE TERMS:zoning,building Inspector,by-law,garage,building permit,truck,street,variance,aggrieved,cesspool, nonconforming use,notice,special permit,constructive,issuance,storage,resident,inspector's,mandamus,appeal period, neighborhood,contracting,residential,board's decision,commercial vehicles,right of appeal,limitations period,direct review, construct,lawful • LEXISNEXIS®HEADNOTES 11e� • '-Hide Adm)nlstrative Lae>]ndiriel Review>Reviewabintx>standing 1nt1 Gevemments>I migration>ermines M l imn-atlnna>Time LImICRIone Real Property Lai>7nnina&I and use>Arneral Ovrrvlpg nu RNt±flass.Gen.Laws rti.40A. 6 7 provides that the building Inspector shall notify,In writing,the party requesting enforcement of the zoning by-law of any action or refusal to act,and the reasons therefor,within 14 days of receipt of a request for enforcement.Under Mass.Gen.Laws ch.40k 6 6 a person aggrieved by reason of his Inability to obtain enforcement action has a right of appeal to the permit granting authority.Under Masc.Gen.I aws rh.40A. 5 15,any such appeal must be taken within 30 days from the date of the order or decision which Is being appealed.Mass.Gen Tana rh.40A. 6 7 establishes a six-year limitations period for actions seeking to remedy zoning violations arising out of httne•//www[exit r.nm/research/retrieve?cc=&nushme=1&tmnFRSel=all&totaldocs=&ta¢... 12/7/2009 • - ' Search- 100 Results -30 day appeal period for building permits Page 2 of 9 alleged unlawful activities conducted pursuant to an original building permit. More Like This Headnote I cowmen—Restrict By Headnote Government.>Leglelatlda>ciente;of I ImlblHnns>Time Limitatlnn•t Real Property Law>7onlnn&I end Us•>Roneonforminn uses tai] MNztSee Mass.Gen.Laws ch.40A.4 7.shenerdbe:Restrict By Headnote - - Adminlsrmtive law>bidMal Review>REvlewablllty>Fxhaostinn of Remedies si Adminlstmttve Law>ludlrlal Review>RSvlewabliipt>Standing 1Fys1 ry Real property law>7onlno&I and lice>Adrnlnlctrative Prnredilre HNa±There can be no resort to court action to enforce the zoning laws until aggrieved parties have exhausted their rights of administrative appeal. More Like This Headnote I Sheoam'tze•Resta t By Headnote Chifrossduol>Remedies>'Jlr'l >General mews/ et es Real Property I aw>7onlno&I end Use>ludlrlal Revlgt`+el Real Prooertv Law>7nnina&I end Use>nrdinanres tie! Mw4±Aggrieved citizens have the right to obtain,by means of mandamus,strict enforcement of the zoning by- law. More Like THIe Headnote I Shepard/re:Restrict By Headdrltte Fnvlronmentai Law>7nnina&I end Lice>Nonconforming Ikea'wl Real Property I aw>7nnina 9I and Use>eloneonfnrmJnp uses t«Ai Real Property I aw>7onlno&I end Ilse>ilydinanrea*a NNS±The considerations for determining the lawfulness of an expansion of a nonconforming use 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 if 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. sore Ulm Pile Headnote I Sheoa, e:Restrict By Headnote HEADNOTES/SYLLABUS G:H1dS HEADNOTES Zoning,Nonconforming use or structure,Enforcement,Building permit,Building Inspector,Appeal to board of appeals, Timeliness of appeal.Permit.Jurisdiction,Zoning enforcement. SYLLABUS Failure of a town building Inspector to re ply within the fourteen days allowed by G.L e.40A.4 7 to a request,made under that statute,for enforcement of the zoning by-law did not amount to a constructive denial of the request.[475-480] A town building inspector's written response to a request under G.L r.40A. 4 7 that he enforce certain provisions of the town's zoning by-law,created the appealable decision contemplated by G. L r.40A.4 8,and fixed the date from which to measure the thirty-day appeal period provided In G.L.c.40A. 4 15. [479-480] The period within which parties aggrieved by the decision to Issue a building permit might appeal to the town's board of appeals began to run at the time of the building Inspector's written denial of the parties'request that he halt allegedly unlawful construction from going[***2] forward under color of the permit,and not at the time of issuance of the permit. [480-483] On an appeal from a decision of a town's board of appeals upholding the Issuance of a building permit for construction of a second garage on premises occupied by a cesspool business being conducted as a protected nonconforming use In a residential zone,the • Judge properly concluded that the construction of the garage would be an unlawful expansion of a nonconforming use,In violation of the zoning by-law. [483-485] On appeal from a decision of a town's board of appeals with respect to a request under G. I. r.40A. 4 7,for enforcement of the zoning by-law,the Judge was warranted In finding that a certain corporation,which had been conducting a cesspool business as a protected nonconforming use In a residential zone, had expanded Its business by conducting on Its premises a trucking business In connection with work as a general contractor and excavator,and the judge correctly ruled that this use was not permitted by the corporation's 1965 zoning variance and thus was beyond the scope of the town's 1975 zoning by-law, [485-486] The judge In a zoning enforcement proceeding,after[***3] determining that a second garage on certain premises would exceed the permissible scope of a prote cted nonconforming use, properly declined to order removal of the garage,where the record did not establish that It could not be put to any lawful use or otherwise made to conform to the town's zoning by-law.[486-487] The operator of a cesspool business,which was conducted in a residential zone as a protected nonconforming use,should not have been enjoined from allowing any eighteen-wheel vehicles on its premises,where facts found by the judge indicated that such vehicles had been used for ma king deliveries to the premises since the Inception of the defendant's business. [487] COUNSEL'Edward W. Kirk,Falmouth,for Avery W.Lovell,Inc. Robert E. Galvin,Marshfield,for the plaintiffs, httnq•//www.lexis.cnm/research/retrieve?cc=&nushme=1&tmnFBSel=all&totaldocs=&tap... 12/7/2009 ' Search- 100 Results-30 day appeal period for building permits Page 3 of 9 • JUDGES;Greaney,C.J.,Brown,&Perretta,13- OPINION BY:GREANEY OPINION [*472] (**273] The defendant,Avery W. Lovell,Inc.(Lovell),appeals from judgments of the Superior Court enjoining Lovell from(a)garaging or maintaining eighteen-wheel vehicles or allowing such vehicles on Its property and(b)using a garage for the storage of commercial vehicles and equipment.The appeals have[***4] been consolidated.The questions argued are whether the Superior Court had jurisdiction over the cases,and if so,whether ft decided them correctly. We state the facts pertaining to the jurisdictional Issues.Lovell Is in the business of Installing and maintaining septic tanks and cesspools with its base of operations at 789 Mayflower Street in Duxbury.The property Is located In a residential zone.Lovell conducted Its business pursuant to a variance granted by the board of appeals of Duxbury(board)in 1965 which permitted it(1)to conduct,In"a residential district,"a"cesspool business, both as to the maintenance of the same and the construction of new cesspools,"and(2)to construct"a garage to store (its]equipment under cover."In 1975,the [*473] town adopted a new zoning by-law.By reason of art. 106 of the by-law,Lovell's operations became a nonconforming use.The plaintiffs live on Mayflower Street In the Immediate vicinity of Lovell's business. In early 1981,Lovell inquired of the board whether a special permit would be necessary under the by-law for the construction of a second garage on its Mayflower Street property. On May 15, 1981,the board[***5] Issued a memorandum to the building inspector stating that a special permit was unnecessary.On lune 22,1981,the plaintiffs,and other neighborhood residents,wrote to the building Inspector complaining about the parking of large flatbed trucks and"other long trailer trucks"on Lovell's property.'The building Inspector did not reply to the letter. FOOTNOTES s This letter read as follows: "We,the undersigned residents of Mayflower St.,Lincoln St.,and vicinity,wish to protest the parking of large flat bed, and other long trailer trucks at The Avery Lovell Pumping business,on Mayflower St.,The name on the trucks Is Franc (e]sco's Trucking.These trucks have been parking for over a year,at Lovell's.Several of us have complained to[a local official]who said he talked to Mr. Lovell,and that Mr.Lovell denied that they were there.We have pictures to support our claim.These large trucks are a hazard to this residential area.They are much too long to negotiate the turn onto Lincoln St.,and we have all seen several near accidents,because cars coming up Lincoln St.,toward Mayflower,come around a curve and cannot see the trucks until they are halfway out-blocking the whole street.There have also been many close calls with children on bicycles,for the same reason.In addition,these trucks disturb the peace,by often leaving Lovell's as early as 4:30 A.M.,and as late as 10:30 P.M.We request that this practice of parking these trucks, or any other large,noisy trucks,such as these,be discontinued immediately)This is a residential neighborhood,and they constitute a danger.We would like action on this matter before the trucks are responsible for some terrible accident.' (***6] [**274] On July 10,1981,the building Inspector Issued a building permit granting Lovell permission to construct a fifty by fifty-five foot second building for the'storage of vehicles."The building inspector's decision to grant the permit was not appealed to the board.' FOOTNOTES *The record does not clearly indicate the dates when persons who might have been aggrieved by the building permit learned of its Issuance.As to the plaintiff Vokes, It appears,at one point in the record,that she knew on July 7 that the building permit was about to issue.At another point,however,she testified that she was led to believe by the building Inspector and the ,chairman of the board that the permit would not issue until the board had held a hearing on its legality.She further testified that she was advised that a meeting of the board held prior to July 10 would not concern Itself with the permit.There is no indication in the record of when the plaintiff Boucher learned of the permit's issuance. [*474] On October(***7] 19, 1981,after engaging a lawyer,the plaintiffs,in two letters,requested that the building inspector (1)issue a'stop order"prohibiting Lovell from operating and maintaining eighteen-wheel gravel trucks and flatbed trailers,and(2) Issue a"stop order'on the building permit granted Lovell on July 10, 1981. 'The building inspector did not respond to the letters within fourteen days. He did,however,reply In a letter dated November 18, 1981,in which he declined both requests for enforcement.' FOOTNOTES - • s The letter from plaintiffs'counsel to the building Inspector concerning the building permit read as follows: "In accordance with Article 900 of the Protective By-law of the Town of Duxbury and in conformity with Massachusetts General I Mgt-Ch.40A.Sara,I hereby request that you Issue a STOP ORDER on Building Permit No. 8056 Issued July 10, 1981,to Avery W.Lovell,Inc.on property located at 789 Mayflower Street,In Duxbury,being Parcel 090-029-002 on the Assessors'Map, "The basis for the violation is the construction of a commercial building In a residential zone without a Variance(see section 402- 2)and the lack of a Special Permit for approval of the Site Plan. httns://www.lexis.com/research/retrieve7cc=&pushme=l&tmpFBSel=all&totaldocs=&tag... 12/7/2009 • ' Search- 100 Results -30 day appeal period for building permits Page 4 of 9 "A previous Variance granted to Avery W.Lovell is Case#65-21 In which a petition for a Variance was approved on October 1, 1965,to construct and maintain a 6-stall garage for the storage and maintenance of commercial vehicles and equipment.This Variance does not grant permission for the further construction of commercial buildings or the expansion of the business on the site without a new hearing." The letter from plaintiffs'counsel concerning the use of eighteen-wheel vehicles was similar In content and directed the building Inspector's attention to four provisions of the Duxbury zoning by-law which the plaintiffs claimed were being violated by Lovell's use of the vehicles. The reference to"stop orders"I n the letters Is In keeping with art.902 of the Duxbury zoning by-law,which makes such a request the Initial step in the enforcement process. [***81 a The building Inspector's letter of November 18,1981,expressed the views that eighteen-wheel trucks had always been Involved in Lovell's business and that"the trucks are[not]a zoning problem that should be under my control as a zoning officer." With reference to the building permit,the building Inspector denied the request for a stop order because"the construction of [the]storage building on Mr.Lovell's property Is not a substantial extension of the non-conforming use"(emphasis in original). [*4751 On November 19, 1981,the plaintiffs appealed from the building inspector's decision to the board.On January 14,1982, the board held a hearing on the appeal and also heard Lovell's argument that the board lacked jurisdiction.On February 1, 1982,the board filed a written decision with the town clerk In which It stated that it had"no jurisdiction to hear the issue of the building permit as the appeal appears to be untimely."While the board's decision is a bit unclear,it also appears that the board believed that it lacked Jurisdiction to hear the appeal pertaining(***9] to Lovell's use (**275] of eighteen-wheel vehicles. Nevertheless,the board agreed to decide the merits"In order that the[t]own,the parties and the public may have the benefit of our opinion.'The board upheld both decisions of the building inspector. On February 17, 1982,the plaintiffs filed two complaints In the Superior Court alleging that they were aggrieved by the board's decision.The complaints sought(a)to enjoin Lovell from maintaining and using eighteen-wheel vehicles on its property and from using the second garage built pursuant to the permit In violation of the by-law; (b)orders directing the building Inspector to compel removal of the garage and prohibiting Lovell's use of eighteen-wheel vehicles;and(c)a further order confining lover I's operations to the level of non-conforming use permitted by the 1965 variance.Lovell filed motions to dismiss both actions on the ground that the Superior Court lacked jurisdiction.A judge of the Superior Court denied Lovell's motions and considered the cases on their merits.He concluded that the board had erred and entered the judgments described earlier. 1.Resolution of the jurisdictional questions requires[***10] examination of the pertinent provisions of§§l,fl,and 15 of G.L c. 40A.' FOOTNOTES 7 All references In this opinion are to the provisions of the present Zoning Act,as appearing In St. 1975,C. 808,§3.When the prior Act Is referred to, It will be described as the prior c.40A. [*476] The building Inspector In Duxbury Is the officer charged with enforcement of the Duxbury zoning by-law.N1777 S-ctlnn 7 of S"•i•c.40A provides that the building Inspector'shall notify,In writing,the party requesting . ..enforcement[of the zoning by-law] of any action or refusal to act,and the reasons therefor,within fourteen days of receipt of[a]requ est"for enforcem ent.Under 6 R of G.L.c.40A a person aggrieved"by reason of his inability to obtain...enforcement action"has a right of appeal to the permit granting authority,here the board.Under§15 of c.40A,any such appeal must be taken"within thirty days from the date of the order or decision which is being appealed."The language of the proviso[***11) In the second paragraph of§1,however, establishes a six-year limitations period for actions seeking to remedy zoning violations arising out of alleged unlawful activities conducted pursuant to an"original building permit."' FOOTNOTES ' a H7177The second paragraph of§1 reads as follows: "No action,suit or proceeding shall be maintained In any court,nor any administrative or other action taken to recover a fine or damages or to compel the removal,alteration,or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except In accordance with the provisions of this section,section eight and section seventeen,provided,however,if real property has been improved and used In accordance with the terms of the original building permit issued by a person duly authorized to Issue such permits,no action,criminal or civil,the effect or purpose of which is to compel the abandonment,limitation or modification of the use allowed by sald permit or the removal,alteration or relocation of any structure erected In reliance upon said permit by reason of any alleged violation of the provisions of this chapter,or of any ordinance or by-law adopted thereunder,shall be maintained,unless such action,suit or proceeding Is commenced and notice thereof recorded In the registry of deeds for each county or district in which the land Iles within six years next after the commencement of the alleged violation of law.Such notice shall include names of one or m ore of the owners of record,the name of the person initiating the action,and adequate Identiflcatlon of the structure and the alleged violation." [***12] Lovell urges a strict construction of these statutes.As to the dispute over the eighteen-wheel vehicles,Lovell argues that httns://www.lexis.com/research/retrieve?cc=&pushme=l&tmpFBSel=all&totaldocs=&tag... 12/7/2009 • • • Search- 100 Results-30 day appeal period for building permits Page 5 of 9 the building Inspector's failure to respond by July 6, 1981,the fourteenth day following the plaintiffs'lune 22 letter,constituted (*477] a constructive denial of its request for enforcement and that the thirty-day appeal period specified in fi 15 commenced running on that date and expired on August 5, 1981.As to the dispute over the building permit,Lovell measures the thirty-day appeal period from the date of the permit's Issuance(July 10, 1981)making(according to its argument)an appeal from the permit's grant untimely if brought later than (*•276] August 10,1981,In Lovell's view,the requests for enforcem ent Initiated by the letters of the plaintiffs'counsel on October 19, 1981(followed by the building inspector's negative reply to those requests on November 18, 1981,and the plaintiffs'appeal to the board on November 19, 1981),were untimely in all respects. The plaintiffs,on the other hand,look to the building Inspector's written denial,on November 18, 1981,of both their requests for enforcement as the date which started the(***13] running of the thirty-day clock under§15.In the plaintiffs'view,appeals flled. with the board on November 19,1981,and with the Superior Court on February 17,1982(the latter within twenty days of the filing of the board's decision with the town clerk,on February 1, 1982,see G. I..r.40A. 6 17),were timely. We think that the written decision required of a building Inspector by§Z should be deemed the operative event for purposes of the plaintiffs'rights of appeal.Section 7 is unambiguous in requiring a response"in writing"with"the reasons therefor"when a building inspector"declines to act'on a request for enforcement.See Quinn v.Zoning Bd.of Appeals of Dalton,ante 191,194-195(1984) (where language of a statute is unambiguous, a court will construe It In accordance with its plain language).We also think that the language of§1,which confers the right to appeal upon a'person aggrieved by reason of his inability to obtain.,.enforcement" contemplates,as a precondition tothe right of appeal,the written response declining enforcement described in U. In support of this Interpretation,we consider significant the lack of any Indication(***14] in either§Z or§Q that a building inspector's failure to respond within fourteen days to an enforcement [*478] request Is to be deemed a constructive denial of the request for purposes of setting in motion the thirty-day appeal period provided by§15.The fact that the Legislature,in other provisions of the present Zoning Act,has made express provision for the effect of failures to act by local zoning authorities strongly suggests that the absence of any like provision In§Z or§_a is purposeful,*Not only is an Interpretation of 64 7 11 and 15 which links the time for an appeal by an aggrieved party to the permit granting authority to the date of the building Inspector's written dedsion under U faithful to the reasonably plain wording of the statutes,but It also provides a means for the fair and practical administration of the provisions of c.40A governing enforcement of a zoning by-law at the local stage. t* FOOTNOTES s See the eighth paragraph of G.L e.40k 6 9(providing that the failure of the special permit granting authority to take final action upon an application for a special permit within ninety days following the date of the public hearing on the application"shall be deemed to be a grant of the permit applied for"), and the filth paragraph of 4 15(providing that the failure of a zoning board of appeals to act within seventy-five days of an application or petition'shall be deemed to be the grant of the relief,application or petition sought").See also Building Inspector of Attleboro v.Attleboro 1 andfill,Inr..384 Macs. 109(19811(construing and applying the constructive approval provisions of L5); ••.- •J.• .• • •• -.I- • a• •• •• v- • •; (construing and applying the constructive approval provisions of 6 15).The decisions which construe G. I c.40k 812 and 15, state that a constructive grant occurs not only when there is a failure to make a decision within the statutory time period but also when there is a failure to file the decision with the city or town clerk within the same time frame.See Building Inspector of Attleboro v.Attleboro Landfill.Inc, supe at 110-111; Capone v Zoning Bd of Appeals of Fitchburg,389 Mass.at 623-624.See also . .a- -• a •t .. :. • .•-• a . . t•.-n u- a :r . The fact that§j.9 and 15 speak of constructive grants,while we are here concerned with an argument for constructive denial,Is of no significance.The absence of language in§Z or La specifying what is to happen on the fifteenth day after a request for enforcement,if the building Inspector takes no action on the request,is the critical fact for our purposes.We cannot supply the missing language.See Boylston Water Dist,v.Tahanto Reo.Sch. 01st..153 Mass.81,83-84(19671. (***15] io An interpretation of 5 7 which provides for constructive denial would likely spawn litigation to determine whether fumbling lay Inquiries and protests addressed to building inspectors were In fact definitive requests for enforcement,sufficient to start the running of the fourteen-day decision period. - [*479] (**277] We are not persuaded that a more restrictive construction is required by the designation in§Z of a fourteen-day period for a response by the building inspector.This period Is obviously designed to encourage promptness.In some cases, however,a building Inspector may not be able to act on a request within fourteen days for legitimate reasons,such as(for exa mpie) the inspector's need to obtain further Information from the complaining parties to clarify the nature of the complaint or his need to consult with other municipal boards or officers having an interest In the matter. at In our view,the fourteen day requirement in 1.Z "relates only to the time of performance of a duty by a public officer and does not go to the essence of the thing to be done,"Cheney r***161 v.Coughlin.201 Mass.204.211(19091;therefore it is directory and not mandatory. See f rdlen v. Building Inspector of North Attleborough.353 Mass.671.679-680(1968) and cases cited,We conclude that the date on which a zoning enforcement .- . officer responds in writing to a§Z request for enforcement creates the appealable decision contemplated by LB and becomes the date for measuring the thirty-day appeal period set forth In 6 15. 16 There is nothing to [*480] the contrary In either p/r'ihagt v, Building Inspector of Marlboro gh. 11 Mass.Aoo.Ct.230(19811,In the cases following that decision,t*or In the Duxbury zoning by-law. FOOTNOTES it We leave for another occasion analysis of the concern that a slothful building Inspector could prevent complaining parties from exercising their rights by doing nothing upon receipt of an enforcement request and whether,if the inspector refuses to act,the parties seeking enforcement may have an alternative to the time and expense which might accompany resort to a complaint in the nature of mandamus. As to the owner's being made aware of a request for enforcement,we direct attention to the recommendations made In Neuhaus v.Building Inspector ofMarlborouoh,11 Mass.ADD,Ct. 230.235 n.13(19811. (***17] 22 The legislative history of the enforcement and appeals provisions of c.40A clearly supports our conclusion.See discussion in 1972 House Doc.No. 5009,at 59-61,Indicating that the written decision requirement of§Z Is Intended to provide a mechanism • httnv//wwv.lexis.com/research/retrieve?cc=&nushme=1&tmoFBSel=all&totaldocs=&tag.., 12/7/2009 Search- 100 Results-30 day appeal period for building permits Page 6 of 9 for direct appeal by an aggrieved party to the permit granting authority by creating an"appealable decision"and that'the Department[of Community Affairs]has recommended the mandatory practice of requiring local enforcement officials to render written decisions In cases where they decline to act on requests for enforcement of the zoning ordinance or by-law.One result of this procedure will be to make applicable the administrative appeal process of such situations." .13 See William C.Beate Corp.v.Building Inspector of Brockton, 11 Maas.ADD.rt. 930(19811; McDonald's Corn, v. c-Pkonk. 1 Mass.ADD.Ct 351(19811;Selectmen of Tewksburyv Granffeld 17 Mass ADo.Ct 1011(19841.Neuhaus and its progeny stand for the proposition that ww7there can be no resort to court action to enforce the zoning laws until aggrieved parties have exhausted their rights of administrative appeal.See also Cane Resort Hotels-hr. v.Alcoholic Llcpns/no Bd.of Falmouth.385 Mass.205.207 n.1(19871. [***18] Applying this reasoning,we conclude that jurisdictional requirements pertinent to the complaint concerning the eighteen- wheel vehicles were met.The failure of the building inspector to respond to the plaintiffs'lune 22, 1981,request was of no legal consequence.The plaintiffs'right of appeal to the board thus arose on Nevem ber 18, 1981,when the Inspector first complied with§ Z by his written response denying enforcement.Appeal to the board from the Inspector's refusal of enforcement seasonably followed within thirty days of the inspector's denial(as required by G. L.c.40A.6 15),and the appeal to the Superior Court from the board's decision was within the twenty days required by r.I,r.40A.6 17. The dispute concerning the building permit Involves different considerations. Under 6 13 of the prior c.40A,a person aggrieved by a decision to Issue a building permit could seek direct review of the decision.Until 1963, "there was no statutory time limit for pursuing that right of review [**2781 and the setting of a"reasonable time"limit was left to local zoning by-laws. Failure to appeal within any time period set by the by-law foreclosed the right of(***19] direct review.See Kolodny v.Board of Appeals of fimnklinP.146 Masa.285(19631." FOOTNOTES 14 By St. 1963,c.207,the Legislature deleted the authorization of local zoning by-laws to prescribe a"reasonable time"for appeals to be taken under the prior G. L c.40A.fi 13,and Inserted a thirty-day time limit for§13 appeals In§ 16 of the prior Act. is In Kolodny,the building permits issued on March 27,1962,and the plaintiffs sought revocation of the permits on April 10, 1962.On April 26, 1962,the building commissioner refused to revoke the permits and the plaintiffs appealed his decision not to do so to the board.The March 27 date which the permits Issued was considered the crucial date for purposes of triggering the ten-day right of appeal specified by the Brookline zoning by-law as a"reasonable time"for an appeal.Hence,the commissioner's decision not to revoke the permits made after the expiration of the ten-day period was not an appealable decision,that decision being viewed as'no more than a reaffirmation of the [commissioner's]decision of March 27, 1962,to Issue the permits'Id.at 288.A lawsuit based on the building Inspector's April 26 decision was dismissed for lack of jurisdiction.Ibid.See also Kolodny v Building Commr.of Brookline. 346 Mass. 289(1 963) affirming the right to enforce the zoning by-law by mandamus,but concluding that an action seeking such relief on the facts therein considered was premature. (***20] (*481] It was recognized,however,In Bradyv.Board of Appeals of Westport,348 Mass. 515(1965) that the right of direct review was not the exclusive remedy.The passage from Brady(at 519-520)set forth in the margin describes the shortcomings of the prior c.40A In this area and the reasons necessitating an alternative remedy to correct violations of the zoning by-law made under color of a building permit."*In essence,Brady confirmed (*4821 the existence of wN*the right well-established in Massachusetts jurisprudence,of aggrieved citizens,to obtain,by means of mandamus,strict enforcement of the zoning by-law."See . ,.,, : .11. ,r , • ,• • •,, a„• - . .. . . . . and cases cited; Hallenborg v Billedra,360 Mass 511.519=5.22119.21). FOOTNOTES is'Section 13 of e.40A,as amended,does not,however,establish a comprehensive statutory scheme for enforcement which restricts to the statutory procedures action by individual citizens seeking to Invoke the enforcement process.. .. `The uncertain relation of§..13 to the enforcing process is apparent upon consideration of possible eventualities.Decisions granting a permit may not,within the appeal period,come to the attention of persons who will be aggrieved by a violation of the zoning law....Construction under a permit may not be begun within the appeal period.The permit,or even construction under it, may not disclose the violation....There Is no requirement In the statute for notice to all persons possi bly affected by an application for a permit Aggrieved persons as to whom applicable provisions In respect of time of appeal are unreasonable may proceed by mandamus for enforcement of the law....There Is no provision In the statute requiring a written decision on requests for enforcement.If the decision not to comply with such a request Is oral,no appeal Iles.There Is In such a case nothing except inaction to show what the decision Is,and of course no date of decision from which to compute the time for an appeal....If,as here,the response Is in writing,there is nevertheless no notice to other persons aggrieved and no basis for barring them from mandamus.There would be no occasion for notice to anyone else If the person requesting action did not appeal from the enforcing officer's not to act. "Failure to take an appeal within the prescribed period from the granting or denial of a permit Is a bar to a direct review of the action in respect of the permit[citing,among other cases,the two Kolodny decisions,see note 15 supra).In a proceeding for - enforcement of the zoning law,however,the existence of a permit Is inconsequential... .Hence,as this second of the Kolodny cases[346 Mass. 2891 has established,the loss by an aggrieved citizen of the right of direct attack on a permit does not entail loss of the right of the same citizen to bring a mandamus petition for enforcement of the law and to stop violations in the 'construction going forward under the permit.'(***21] sr The problems arising out of an aggrieved party's being unaware of the Issuance of a building permit still exist.The holder of a building permit has up to six months from the date of its Issuance to commence work under the permit See 780 Code of Mass. Regs.§ 114.3(1980).There Is no public notice of the Issuance of a building permit.A permit holder could keep the fact of the • Mina•//www lexis nnm/research/retrieve7cc=&nushme=1&tmnFBSel=all&totaldocs=&tat;... 12/7/2009 • ' Search- 100 Results-30 day appeal period for building permits Page 7 of 9 permit's Issuance secret,refrain from beginning construction under the permit for the thirty-day period established by 6 15,and thereby foreclose any further direct review of the legality of the permit's Issuance. [**279] The Brady right appears Implicit In the addition to§22 of the prior c.40A(by means of St 1970,c.678,§ 1)of a proviso establishing a six-year limitations period for actions seeking to remedy zoning violations occurring under an"original building permit.""The six-year limitation period was inserted In the second paragraph of 6 7 of G. L r.40A,see note 8,supra,to be read and applied In conjunction with the written response requirement of the first paragraph (***22] of§1 and the rights conferred by 66 8,15 and 17.Thus,with the enactment of the new Zoning Act,the Brady right to mandamus as a remedy for zoning violations committed under color of a building permit became a right to request the officer charged with enforcing local zoning to enforce the by-law under G. L.c.40A. 6 7,and,If the requesting party is aggrieved by the Inspector's decision,a right to seek administrative relief from the board under G. L c.40k 64 8 and 15,and,atter exhausting [*483] administrative remedies,a right to obtain judicial review pursuant to G. I,r 40A.6 17.See Neuhaus v.Bu//dfno Inspector of Marlborough. 11 Macs.Aon.rt. at 717-735.a FOOTNOTES as See Cape Resort Hotels,Inc. v.Alcoholic Licensino Bd.of Falmouth.385 Mass.at 216-218.See generally Holmes,Zoning Limitations--Limiting Enforcement of Laws Relating to Buildings,55 Mass.L.Q.377(1970). as These provisions of the new Zoning.Act rid the enforcement scheme of the problems In the prior c.40A,described In the Kolodny and Brady decisions,see note 16,supra,and continued the six-year limitations period within which the Brady right could be exercised. [***23] Here the"original building permit,"for purposes of§1,was the permit authorizing Lovell to construct the second garage.See);age Resort Hotels,Inc. v.Alcoholic Licens/no Bd. of Falmouth.385 Mass.205.217-218(19821.We view the plaintiffs' written request on October 19,1981,for enforcem ent,see note 5,supra,as an effort to stop allegedly unlawful construction from going forward under color of that permit.The building Inspector's written denial of their request made the plaintiffs,under LB, "person(s]aggrieved by reason of[their]inability to obtain...enforcement action,"and they thereafter complied,In a timely manner,with the jurisdictional steps required by c.40A and the Neuhaus decision.We conclude that the Superior Court had jurisdiction of the appeal from the board's decision affirming the Issuance of the building permit.30 See Carstensrn v.Zoning Rd.of • Appeals of Cambrdoe. 11 Mass.Am.Ct. 348.351-352(1981)(applying this rule without discussing the same). FOOTNOTES 20 Prior to commencing their action challenging construction under the permit,the plaintiffs did not file In the local registry of deeds the notice required by j 2,see the appendix hereto,as a condition of such an action.The notice requirement appears to be In the nature of a lis pendens designed to give constructive notice to prospective purchasers and other Interested parties that a question as to zoning exists with regard to the property.The failure to record notice would ordinarily require dismissal of the action subject to Its being timely recommenced(if it can be),after the condition is satisfied,within the six-year limitations period. It appears here,however,that there are no other parties,beyond the parties to this action,whose rights are,or could be, adversely affected by the lack of nod ce.We conclude,without formulating a general rule on the Issue,that these appeals should be decided without regard to the plaintiffs'failure to record the notice.Compare Pierce v.Board VA:meals of Carver.369 Mass 804.810-812(19761. (***24] 2.We turn to a consideration of the merits.In addition to the facts previously recited In this opinion,the judge's memorandum contained the additional findings of fact set forth In the appendix to this opinion.Based on all the facts found,the judge ruled that the construction of the second garage was 1*4841 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(19661.for determining the lawfulness of an expansion of a nonconforming use. • [*02801 There was no error in the judge's rulings on the matter of the second ga rage.The 1965 variance confined Lovell to using the property for Its"cesspool business,both as to the maintenance of the same and the construction of new cesspools;and allowed Lovell to"construct and maintain a[single]six-stall garage on[the]land. ..for the storage and maintenance of commercial vehicles and equipment."The variance sanctioned the first garage solely for the purpose(***25] of the storage and maintenance of vehicles used by Lovell In connection with the use permitted by the variance--the conduct of a cesspool business.The construction of the second garage violated the limits of the variance(and,as a result,In 1975,violated the permissible scope of the nonconforming use) that permitted construction of only one garage."Compare - -'u-. • • .•s•• *' Y•r .' 'a m s rt.957.959(19821(enlargement of facilities In violation of special permit is an Impermissible use of property). FOOTNOTES a To the extent that the second garage might house equipment or vehicles used In connection with Lovell's cesspool business,its construction was precluded by the rule that the existence of a lawful nonconforming use does not permit the erection of additional buildings for the expansion or enlargement of that use unless permitted by the zoning by-law and the requirements of the by-law are followed.See Wllbur v.Newton.302 Mass 38.43(19381;Insoector of Bides,of Buriinaton v.Mumhv.320 Mass. 207.210 (19461;C20.028£.1.../ planning Bd.ofReadlno v.Board of Appeals of Reading.111 Mass.657.660(19561;Simeon Stone Cory. v.Board of Appeals of Bourne.345 Masa. 188. 197-191(1967);Bowes v.Insoertor Cif 8/dac.of Brockton. 347 Mass.295.797-798(19641; Garfield v.Board of Appeals of Rorkoort.356 Mass. 37.40(19691; powers v.Building Inspector of Barnstable.363 Mass.648.658 n.4(19731.These decisions were under the prior c.40A,but there Is nothing in the present c.40A which could give reason to doubt their validity.There Is also nothing in the applicable provisions of the Duxbury zoning by-law which would permit the construction of a building of the size of the second garage without a special permit or other relief from the board. httnc-//www Untie rnm/recearrh/retrieve?cc=&nushme=1&tmnFRSel=all&atntaldncs=$tae... 12/7/2009 . Search- 100 Results-30 day appeal period for building permits Page 8 of 9 (***26] As to the eighteen-wheel vehicles,the judge's findings of fact(which are supported both by the testimony he found credible and the documentary and demonstrative evidence)make clear that by associating in 1979 with Francesco Excavation Corp., Lovell had established and conducted,side by side on the premises with its cesspool business,a trucking business In connection with work as a general contractor and excavator.These latter enterprises were not permitted by the 1965 variance"(and thus were beyond the scope of the 1975 by-law protecting nonconforming uses)and constituted new,substantively different,uses from the authorized business.See Building Inspector of Malden v Wed/n Reaftv Inc 349 Mass 623 624-625(19651. FOOTNOTES 22 Lovell argues that the 1965 variance also permitted a general contracting business.There is no mention in the variance of a general contracting business or of equipment used in general contracting work to be stored at the Mayflower Street premises.If Lovell found the variance to be ambiguous or incomplete,it had the right to seek clarification or to appeal. In 1975,only Lovell's cesspool operation became a legal nonconforming use under the Duxbury by-law.There Is nothing to indicate that Lovell ever received permission(In the form of either a variance or special permit)to conduct a general contracting business(under the present Duxbury by-law a nonconforming use cannot be changed except to a conform ing use or except to another nonconforming use if a special permit Is granted).Thus,the fact that eighteen-wheel trucks may have been used In connection with an Illegal general contracting business Is not pertinent to an inquiry regarding whether the requisite similarity has been shown between the current use of those trucks and the lawful cesspool business.See - •. . - . •.• licensing Bd. of Falmouth.385 Mass.at 214(the Increased use must be attributable to growth of the original nonconforming use In order to fall within the rule that an increase In volume of business does not constitute a change In use).See also&cuffs Public Bldg's, Commr. of Newton. 353 Mass,622,627(19681. (***27] Lovell argues that the eighteen-wheel vehicles are being used in connection with the lawful expansion of Its cesspool business.On the facts found,the judge correctly concluded [*486] (in light of the rule that the party maintaining a nonconforming use has the burden of proving any expansion lawful, [**2811 see • • / , / •r• - I • o• . 385 Mass.at 212)that Lovell had failed to demonstrate that the enlarged use satisfied the three considerations set forth In Br/doewater v.Chuckran. 351 Mass.at 23."None of the other arguments made by Lovell persuades us that any different conclusion is required. FOOTNOTES _ 23 N^'arrhese considerations are"(1)whether the use reflects the'nature and purpose'of the use prevailing when the zoning by- law took effect... [citations omitted].(2)Whether there Is a difference if the quality or character,as well as the degree of use.. .[citations omitted].(3)Whether the current use is'different In kind in Its effect on the neighborhood. . . [citation omitted].'"(1) The original nature and purpose of the use exempted from the zoning by-law was the maintenance and construction of cesspools. The judge correctly determined that the present emergence of a new business on the premises was an unlawful change from the original nature and purpose of the use.(2)The Judge also correctly concluded that there is a difference in the character and degree of use between suppliers making Infrequent deliveries of materials by means of eighteen-wheel vehicles and the garaging and maintaining of eighteen-wheel vehicles for use In a trucking,general contracting,and excavating business.See B dgewater v. LLtuckran. 351 Mass.at 24; •. .• -/ , :Ivh• r. 1,• :• • •la•. v• - 4.(3)Finally,the • testimony that Indicated increased noise,as well as serious traffic and safety problems,since Francesco Excavating Corp.started to conduct Its operations from the Mayflower Street premises supported the Judge's finding that the presence of eighteen-wheel vehicles on the property had an effect on the neighborhood that was different in kind.See • .- •. • • v : • • Licensing Bd.of Falmouth. 385 Mass at 216. (***28] 3.The remaining questions concern the judgments. (a)The judge concluded that he could not ascertain,from the record, whether the second garage could be put to any lawful use or otherwise made to conform to the by-law.He,therefore,declined to order the garage removed pending an Inquiry to determine whether relief could be obtained under the provisions of the by-law.Accordingly,part 1 of the judgments ordered only that Lovell be enjoined from using the second garage In connection with the use and maintenance of commercial vehicles and equipment.The decision to withhold [•487] an order for the removal of the second garage pending the possibility of further zoning proceedings was within the judge's discretion.See Cullen v.Bu/ldina Inspector of North Attleborouoh.353 Mass. 671, 678-679(1.9681;Selectmen of Blackstone v.Tel/estone.4 Mass.ADD.Ct.311,316(19761. (b)Paragraph 2 of the judgment enjoined Lovell from"garaging or maintaining eighteen-wheel vehicles or allowing the same on his property[at]789 Mayflower Street,Duxbury" (emphasis supplied).The non-italicized language fashioned relief which was reasonably related to the grievance[***291 to be remedied.SeeB/Ilerlce v.Oulnn.320 Mass.687. 690(19471;Perez v.Boston Housing Authy..379 Mass.703. 730(19801.The Italicized language,however,Is overbroad,since the facts found by the judge Indicate that suppliers of Lovell's cesspool business had,from the Inception of the business at the Mayflower Street site,made deliveries of materials,as necessary,to Lovell by means of eighteen-wheel vehicles.This aspect of the cases must be remanded for - reconsideration of the scope of relief granted In light of the scope of the protected prior nonconforming use.The judge,if he deems It necessary or desirable,may hold an evidentiary hearing. The italicized language in paragraph 2 of the judgments('or allowing the same on his property")is vacated and that Issue Is remanded for the devising of new relief in accordance with this opinion.The balance of the judgments is affirmed.The plaintiffs are to have costs of appeal. So ordered. Appendix. 'The plaintiffs live In the immediate vicinity of the Lovell operation. Plaintiff Vokes resides at 761 Mayflower Street and plaintiff httnv//www.lexis.com/research/retrieve?cc=&nushme=1&tmnFBSel=all&totaldocs=&tag... 12/7/2009 ' Search- 100 Results-30 day appeal period for building permits Page 9 of 9 Boucher,at 748 Mayflower Street. " [**2821 Between 1975 and(***3O] 1979,the Lovell operation used and garaged commercial vehicles customarily used In a cesspool and septic tank maintenance and Installation service on the Mayflower Street property.These Included bulldozers,standard size pump trucks(I.e.not eighteen-wheelers), standard [*488] size dump trucks,a'loader,'and other vehicles of similar size and function.Vehicles were garaged in the six-stall garage which Lovell had built in accordance with the terms of the 1965 variance, 'During these years,supplier made Infrequent but regular deliveries of materials used In Lovell's business(e.g.,gravel)In eighteen- wheelers.Eighteen-wheel vehicles were never regularly garaged or maintained on the Mayflower Street property during these years. "In the latter portion of 1979,Lovell entered Into a general partnership with Francesco Excavation Corp.(Francesco).Francesco Is In the business of excavating and transporting excavated materials and other bulk materials.Francesco owns and maintains several eighteen-wheelers in connection with Its business.The terms of the partnership are basically that Francesco may have full use of Lovell's Mayflower Street facilities for storage and (***31] maintenance of its vehicles and that Lovell may have use of Francesco's vehicles as Lovell may need them for deliveries and so forth in connection with Its business. Francesco has listed 789 Mayflower Street,Duxbury,as its main address since the latter portion of 1979. "During the early portion of 1981, Lovell,through Mr.Avery Lovell,Inquired of the[b]oard whether a special permit would be necessary for the construction of an additional garage on the Mayflower Street property.The[b]oard Informed Mr.Lovell that a special permit would not be necessary and Issued a memorandum to the building inspector to that effect. . . .A building permit was Issued to Lovell In July of 1981.Lovell constructed a second garage,comparable In size to the first garage,shortly thereafter.The second garage is used for maintenance work on Francesco's trucks and storage of trucks and equipment.Lovell did not have need for -. additional storage space for its own vehicles and equipment at the time the second garage was constructed. "In the years following 1970,a number of residences were built in the immediate vicinity of the Lovell operation. Persons living In these residences registered[***321 no complaints regarding the Lovell operation.with Lovell or town officials prior to the latter portion of 1979.Since that time,residents have been complaining.The residents report an increase In the level of noise emanating from the Lovell operation during the latter portion of 1979 described by one resident as'phenomenal.'Noises heard are described as 'blasting'sounds,'chains clanking,'horns blowing,and truck engines starting. Noise Is heard at night,at 3 or 4 A.M.,and on Sundays as well as during regular business hours.The neighbors were not disturbed by noise emanating from the Lovell operation prior to the latter portion of 1979. "The neighbors also report that a serious traffic problem has developed since the latter portion of 1979 due to what one resident described as an 'almost constant traffic'of eighteen-wheelers on the narrow residential roads in the area surrounding the Lovell operation. [Here a footnote observed that [*489] 'On Mayflower Street,two cars are able to pass easily In the summer months but only with difficulty during the winter months when there Is snow.']On one area road with a fairly sharp curve,residents have been run off the(***33] road by eighteen-wheelers travelling toward them. Neighborhood children have been forced to abandon Mayflower Street as a bicycle route. Residents report being regularly in fear for the safety of themselves and their families while driving on the neighborhood roads." Source: Combined Source Set 7[y]•MA Stats Casa,Combined Tensa: 30 day appeal period for building permits (EdU Search I$Vgoesl Terms for My Search I Feedback on Your Search) View: Full • Date/rime: Monday,December 7,2009.5:16 PM EST •Signal Legend: �- Warning:Negative treahnent is indicated [i- Questioned:Validity questioned by citing refs A- Caution:Possible negative treatment - Positive treatment is indicated Q• Citing Refs.With Analysis Available 0- Citation Information available •Clkk on any Shepard'signal to Shepe/d/ae®that case. • My Lexis"'I Search I Research Tasks I Get a Document I Shnnenfs®I Alerts I Total I itigato(I Transactional Advisor I Counsel Selector hts14➢t I failver manned Doseix I SMlct diem I Preference.I Strn rid I Hslo �v LCXISNexls"' foovrinhtlQ 2009 LexisNexis,oanddivision ofRReedct Un Elsevier Inc All rights reserved. Idre.e•ffwur, r lnvie nnm/r000arrh/reatrinvp9rr=RRmtchmp=l.CtmnFRgpl=a 11 RrtntalAnrc=.Ctan 11/711f1(10 Search- 100 Results - 30 day appeal period for building permits Page 1 of 5 Sxavai cp.,'l P•Meffer ,I ayu,!Jig lir,kp F My Lexisr* Search Research Tasks Get a DocunwntTShepard's®XAlerta'Total Lingator' Transactional Advisor'tCounsel Selector, marl Poem id) rams FOCUS"'Terms! Search Within Original Rouen°--too) WS Advanced. I Al Results.11001''. Cases-iia01 , Source: Combined Source Sat 7(J-MA State Cases,Combined Terns: 30 day appeal period for building permits (Edi Search l 4uaoest Terms for My Search I Feedback on Your Search) iSelect for FOCUS"'or Delivery • 55 Mass.App. CL 424, *;771 N.E.2d 199, **; 2002 Mass.App. LEXIS 953, *** ANTHONY ELIO,trustee,a vs. ZONING BOARD OF APPEALS OF BARNSTABLE&another a(and a companion case 9. a Of Osterville Village Realty Trust. 2 Mary M.Crowley. 3 Anthony Elio,trustee,vs.Zoning Board of Appeals of Barnstable&another. No.00-P-1860 APPEALS COURT OF MASSACHUSETTS 55 Mass.App. Ct.424;771 N.E.2d 199; 2002 Mass.App. LEXIS 953 May 14,2002,Argued July 11,2002,Decided PRIOR HISTORY: t***1] Suffolk.Civil actions commenced in the Land Court Department on June 18, 1999.The cases were heard by Leon J.Lombardi,3.,on motions for sum mary judgment. DISPOSITION:Judgments affirmed. CASE SUMMARY PROCEDURAL POSTURE:The building commissioner issued plaintiff building owner a permit for renovations. Defendant first citizen filed an appeal.Defendant second citizen filed an appeal application form.Defendant zoning board of appeals revoked the permit and directed the commissioner to enforce the subject ordinance.The Suffolk Land Court Department(Massachusetts), by grant of sum mary judgment,annulled the board's decisions.The citizens appealed. ° OVERVIEW:In response to the first citizen's appeal,the appeals court noted that the first citizen did not appeal from the commissioner's Issuance of the building permit under alter the 30-day appeal period had expired,not did the first citizen make a written request to the commissioner for enforcement of the zoning ordinance.Thus,the appeals court concluded that the land court judge properly annulled the first citizen's decision because the appeal was not timely under Mass. Gen. Laws ch.40A. fi 15. As for the second citizen's appeal,the appeals court concluded that there was no appealable decision under Masc.Gen. Laws ch 40k 4 Q,since the commissioner did not issue a written denial of the second citizen's enforcement request.The appeals court noted that,even though the second citizen acted In reliance on the commissioner's advice,the second citizen did so at her peril. Those who dealt with the government were expected to know the law and could not rely on the conduct of govern ment agents contrary to the law. OUTCOME:The judgment was affirmed. CORE TERMS:zoning ordinance,building permit,by-law,ordinance,issuance,zoning,renovations, building Inspector,written response, inspector's, appeal period, building commissioner,person aggrieved,summary judgment,reinstatement,requesting, expired,Zoning Act, enforcement action,written request,officer charged,alternative remedy,present case,failure to provide, complaining,revocation,compllence,construing,appealable,landowner LEXISNEXIS®HEADNOTES Ij_id_S rNII Prorndure>Judicial Omcera>Jlldgea>General Overview€'4`1 'Ml Procedure>Summary Judgment>Roseate Review>menrrai Oyprvlew*'M' rMi Pnw'rdnn>Agnrals>Standards of Review>General Overview W...i enJ±The appeals court reviews a trial judge's award of summary judgment to determine whether the trial judge correctly decided that,viewing the evidence In the light most favorable to the nonmoving party,all material facts had been established and the moving party was entitledyto a judgment as a matter of law. More Like This Headnote Real Prooprry taw>7nnina&I And Use>Judicial Review V ewe±See Mass.Gen. Laws ch.40A. 4 @(as Inserted by 1975 Mass.Acts 808, §3).Shenarmze:Restrict Ry Headnote https://www.lexis.com/research/retrieve?cc=&pushme=1&tmpFBSel=all&totaldocs=&tag... 12/7/2009 • Search- 100 Results- 30 day appeal period for building permits Page 2 of 5 Governments>I eolslatioa>Statutes of limitations>Time Llmitatlont F,µ Sov.rnments>7 oral finvemments>Licenses Real Properly Law>7onlna&Land Use>Judicial Review Fsu HNS±Mass.Gen. Laws rh.40A. 6 15,provides that any appeal under Mass.Gem Laws ch.40A. 6 8 (as Inserted by 1975 Mass. Acts 808,§ 3)to a permit granting authority shall be taken within 30 days from the date of the order or decision which Is being appealed.Any appeal from the Issuance of a building permit therefore must be brought within 30 days of the date of such Issuance. More uke This Headnote I$heoadfze:Restrict By Headnote Real Pmnerty Law>7onina&I and Use>Administrative Pjgcedure F1 Real Pronerty Law>7onlna&I and Use>Judicial Review F Real Pronerty Law>'onino&I and Use>Ordinance'V Hxay Irrespective of the existence of any building permit or other order of an officer charged with enforcement of a zoning ordinance,a person may make a written request to the officer to enforce the zoning ordinance and then,if that request is denied In writing,may appeal the dental to the board within the time prescribed by Mass.Gen. Laws ch.40A. 6 15. Mess. Gen.Laws ch.4oA. 6 7 provides that an appropriate officer or board shall be charged with the enforcement of the zoning ordinance or by-law and shall withhold a permit for the alteration of any building if the building as altered would be In violation of any zoning ordinance or by-law. More Llke ni Headnote I $hepad@e:Restrict By Headnote Real Property Law>7nnino&land Use>Administrative Procedure N tln5±See Mass.Gen.Laws rh.40A.6 7(as amended� by 1986 Mass. Acts 557,§ 55). Real Property Paw>7nnina&land Use>Judicial Review'+ul HN&±Mass.Gen.Laws ch.41A,§8 provides that an appeal to the building permit granting authority may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action. Mere Uke This Headnote I Shenadbe:Restrfl By Headnote Rea!Property Law>7nnina&Land use>1Hdlrlal Review is HN7±The absence of a written response from the building Inspector Is a defect that can be waived if It is not timely raised or objected to. More Like This Headnnte I$heoadize:Restrict By Headnote Austi n&Corporate taw>Aoencv Relationships>Genera?OveMew'1111 "NHS Those who deal with the government are expected to know the law and may not rely on the conduct of government agents contrary to law. More Like This Headnote HEADNOTES/SYLLABUS - r'Hide HEADNOTES Zoning,Board of appeals:jurisdiction,Appeal to board of appeals,Building inspector, Enforcement. COUNSE[u Ruth J.Well,First Assistant Town Attorney,for Zoning Board of Appeals of Bamstable. Jeffrey P.Allen for Anthony Elio. IUDGES'Present:Cypher,Mason,&Kafker,33. OPINION BY:MASON OPINION (**200] [*425] MASON,J.The defendants,the zoning board of appeals of the town of Barnstable(board),Mary M.Crowley and Elisabeth Eaton Clark,appeal from a Land Court judge's grant of summary judgment annulling for lack of jurisdiction two separate decisions of the board.The first decision,on an appeal by Crowley,had ordered revocation of a building permit authorizing the plaintiff,Anthony Elio,acting as trustee of the Osterville Village Realty Trust(trust),to make certain renovations to a building he owned in Barnstable.The second decision had granted a separate request by Clark for enforcement of the zoning ordinance with respect to the renovations. t**2011 The judge ruled that the board lacked jurisdiction over the Crowley appeal because she had not filed the appeal within thirty days of the Issuance of the building permit, (***2] as required by G.I r.40A. 4 I S.The judge further ruled that the board lacked jurisdiction over the Clark appeal because the building commissioner had not made any written response denying her enforcement request,as required by G. I r.40A,4 7.We agree with both these rulings and therefore affirm the judgment. Background.On November 4,1998,the Barnstable building commissioner(commissioner)Issued a permit authorizing certain ._ renovations to a building owned by the plaintiff and located on Main Street in Barnstable. During the course of work under the permit,however,the commissioner received a complaint that the renovations underway exceeded the work authorized under the permit.The commissioner and the plaintiff agreed to an amendment of the permit In January of 1999.Rather than satisfying the complaining neighbors,however,the amendment prompted further complaints that the proposed work violated the Barnstable zoning ordinance(ordinance).The commissioner Issued a stop work order pending his investigation of the complaints,but the commissioner 'reinstated"the permit a by letter to the plaintiff dated January 19,1999.More[***31 complaints from abutting landowners followed:by letter dated January 21, 1999,the defendant Clark complained to the commissioner that she believed the proposed https://wvw.lexis.corn/research/retrieve?cc=&pushme=1&tmpFBSel=all&totaldocs=&tag... 12/7/2009 '• ' :. •f Search- 100 Results 30 day appeal period for building permits Page 3 of 5 construction did not conform to the ordinance,and an attorney for the defendant Crowley sent a letter, dated January 25, 1999, stating that the [*426] plans on file at the commissioner's office were"Inaccurate and Incorrect,"and requesting that the building permit"be terminated until true,accurate and complete plans are submitted. ..." FOOTNOTES 4 A more precise description would be that he revoked the stop work order. The commissioner met with Clark,and advised her that she should file an appeal with the board if she disagreed with his decision to reinstate the permit.The commissioner then assisted Clark In completing the appeal application form.Clark flied the completed form(which described her appeal as an"enforcement action,"based on her charge that"current construction is in violation of parking and story requirements")with the board on January 26,1999. (***4] On February 17, 1999,an attorney representing Crowley filed an appeal with the board.Crowley's appeal sought "Revocation of Building Permit#34521"; "complience[sic]w/MGL Ch apt 148 Sec 38A&CMR 9.00"; and"complience[sic]w/MGL Chapt 21E 310 CMR 40.000."• FOOTNOTES e The record does not Indicate the basis on which Crowley sought enforcement of G.L c. 21E,which deals with hazardous waste, - under the zoning ordinance. The board convened a hearing on both the Clark and Crowley applications on March 24,1999,and continued the hearing on two successive occasions.The plaintiff challenged both appeals on the same jurisdictional grounds asserted here,but the board rejected the plaintiff's jurisdictional challenges and issued separate decisions revoking the permit and directing the commissioner to enforce the ordinance.The plaintiff appealed the board's decisions to the Land Court in two separate actions,which were treated together In the grant of summary(***5] judgment described above. Discussion.NNITWe review the judge's award of summary judgment to determine whether he correctly decided that,"viewing the evidence In the light most favorable [**202] to the nonmoving party,all material facts[had]been established and the moving party[was]entitled to a judgment as a matter of law.'Augat,Inc.v.Liberty Mut.Ins.Co ,410 Mass. 117, 120. 571 N.E.2d 357 (19911. 1.Annulment of the Crowley decision.As G. L r.40A, §8 inserted by St. 1975,c.808,§3,provides, [*427] NNf"An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person.. .aggrieved by an order or decision of the inspector of buildings,or other administrative official,in violation of any provision of this chapter or any ordinance or by-law adopted thereunder." This section permits appeals from the Issuance of a building permit.See tanner v. Board of AOaeal of Tewksbury.348 Mass. 720 771973, 202 N.F.2d 777(19641(construing similar language contained in prior version of G. L. c.40A). See also Neuhaus v Buifdlna Incoertor of Marlborough, 11 Mass.Apo. Ct.230, 232-233,415 N.F.2d 235(1981). [***6] However,"N371_15 of c.40A provides that"any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which Is being appealed."Any appeal from the issuance of a building permit therefore must be brought within thirty days of the date of such issuance.See Kolodnv v.Board ofADDeals of Brookline.346 Mass. 285.788. 191 N.F.7d 689(19631; " - Greeley v.7nnina Bd. of Appeals of Framinoham. 350 Mass. 549. 552.715 N.F.2d 791(19661. In addition to the foregoing right of direct appeal from a building permit or other order of an officer charged with enforcement of a zoning ordinance,the statute provides that,nN*irrespective of the existence of any such permit or order,a person may make a written request to the officer to enforce the zoning ordinance and then,if that request is denied in writing,may appeal the denial to the board within the time prescribed by fi 15.See G. L.c.404,fifi 7,11.More specifically,§J provides that an appropriate officer or board"shall be charged with the enforcement of the zoning ordinance or by-law and shall withhold a permit(***7] for the.. . alteration . .. of any building . ,.If the building . . .as. .. altered. . .would be in violation of any zoning ordinance or by-law." Section 7.as amended by St. 1986,c. 557, §55,further provides that NN r"If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly In violation of the same and such officer or board ded Ines to act, he shall notify,in writing,the party requesting such enforcement of any action or refusal to act,and the reasons therefor, within fourteen days of receipt of such request.' [*428]NNr$ectlon 8 in turn,provides that an appeal to the permit granting authority may be taken"by any person aggrieved by reason of his inability to obtain a permit or enforcement action. ."(emphasis added). . _ As the court recognized in Brady v. Board of Appeals of Westport,348 Mass, 515. 519-520,2g4 J1.F.2d 513(1965),such an alternative remedy is necessary because persons aggrieved by the Issuance of a building permit or other order may not even know of the permit or order until the appeal period has expired. (***8] •This Is because (**203] no notice of the permit or order to interested third persons is required. FOOTNOTES .. https://www.lexis.com/research/retrieve?cc=&pushme=1&tmpFBSel=all&totaldocs=&tag... 12/7/2009 ` • Search- 100 Results -30 day appeal period for building permits Page 4 of 5 s Prior to enactment of the new Zoning Act In 1975, mandamus was the alternative remedy available to enforce the zoning regulations.See Brady v.Board of Apoeals of Westport.348 Mass at 520.See also Bobrowskl, Massachusetts Land Use& Planning Law§ 7.2,at 264(1993). In the present case,Crowley did not appeal from the commissioner's issuance of the building permit until after the thirty-day appeal period had expired.Nor did she make any written request to the commissioner for enforcement of the zoning ordinance.To the contrary,In her letter to the commissioner dated January 25, 1999,Crowley complained only that the plans pertaining to the renovations that were on file at the commissioner's office were"Inaccurate and incorrect."She did not allege that the renovations themselves failed to comply with any provision of the zoning ordinance or request enforcement of any such provision. The[***9] defendants nevertheless contend that the board had Jurisdiction over Crowley's appeal because Crowley In fact was appealing from the commissioner's reinstatement of the building permit on January 19,1999,rather than the commissioner's earlier grant of the permit on November 4,1998,and hence,the appeal was timely because It was flied with the board on February 17, 1999,which was within thirty days of January 19.The defendants point particularly to the fact that,whereas the commissioner stated at the time he was reinstating the permit that"I have determined that you have a grandfathered right to one apartment'and also placed certain conditions on the use of an access to the building's attic and dormer,Crowley's appeal stated that the permit should be revoked because there was no [*429] prior use of the building as an apartment and the building's configuration failed to comply with other provisions of the zoning ordinance. In fact,Crowley's appeal stated In its main body that Crowley was seeking repeal of"Building Permit#34521,"which was the original permit Issued to the plaintiff.The attachment to Crowley's application further stated that Crowley was asking the board to ' "revoke [***10] Building Permit#34521 dated 11-4-98."The appeal nowhere stated that It was asking the board to revoke the commissioner's reinstatement letter of January 19,1999,rather than the original permit.We therefore agree with the Judge that Crowley's appeal was from the Initial grant of the permit on November 4, 1998,rather than from the reinstatement of the permit on January 19, 1999.See and compare D/Giovanni v.Board of Appeals of Rockport 19 Ma5sA11p. Ct. 339. 345.474 N.F.2d 198 (1985]("boards cannot grant unrequested relief"). We accordingly conclude that the Judge properly annulled the Crowley decision because the appeal was not brought within the thirty- day period mandated by G. L.c.40A.§15. 2. Annulment of the Clark decision.As set forth above,f,, L.r.40A. 5 7,provides that If the officer charged with enforcing the zoning ordinance or by-law declines to act on an enforcement request,he shall"notify,in writing,the party requesting such enforcement of - any action or refusal to act, and the reasons therefor,within fourteen days of receipt of such request"(emphasis added).In Vokes v, Avery W.Lovell.Inc.. 18 Mass.Apo.Ct.471.475-480.468 N.E.2d 271(1984) [***11] this court held that,under fi 7.a written decision from a building inspector was the operative event for purposes of an aggrieved person's right of appeal and,hence,those rights would not expire until thirty days after the Inspector had rendered such a written decision even when the Inspector did not In fact do so until after the fourteen-day response period set forth in§2 had expired. [**204] In reaching this result in Vokes,we noted that"section lis unambiguous In requiring a response'in writing'with'the reasons therefor'when a building Inspector'declines to act'on a request for enforcement."Id.at 477.We further noted that there was no indication In either§1 or§1 that"a building inspector's failure to respond within fourteen days to an enforcement [*430] request Is to be deemed a constructive denial of the request for purposes of setting in motion the thirty-day appeal period provided by§ 15."Id. at 477-478.We then stated the following: "In some cases. ..a building Inspector may not be able to act on a request within fourteen days for legitimate reasons, such as(for exa mple)the Inspector's need to obtain further information [***12] from the complaining parties to clarify the nature of the complaint or his need to consult with other municipal boards or officers having an Interest In the matter. In our view,the fourteen day requirement in§1'relates only to the time of performance of a duty by a public officer and does not go to the essence of the thing to be done';therefore it is directory and not mandatory. We conclude that the date on which a zoning enforcement officer responds In writing to a §2 request for enforcement creates the appealable decision contemplated by§_8 and becomes the date for measuring the thirty-day appeal period set forth In 6 15." Id.at 479.(Citations and footnotes omitted.) In the present case,the commissioner did not provide any written denial of Clark's enforcement request, stating the reasons for such denial.Rather,he merely advised Clark to pursue an appeal and helped her fill out a form purporting to do so.There was therefore no appealable decision as contemplated by§-Q. Nevertheless,citing Hogan v.Haves. 19 Mass.ADO.Ct. 399,402-403.474 N.E.2d 1158(1985),and [***13] Worcester County Christian Communications,Inc.v.Board of Appeals of Spencer 72 Mass.App. Cr. 83.84-86.491 N.E.2d 634(1986) the defendants contend that the absence of a written denial of Clark's enforcement request should have been excused In this case because the commissioner submitted an affidavit In which he stated that he believed that his letter of January 19, 1999, constituted a written denial of the neighbors'enforcement requests, and because the plaintiff failed to show that he had suffered any prejudice from • the commissioners failure to provide any other writing.As the judge explicitly recognized,however,the commissioner's letter of January 19,1999, was written before Clark's January 26,1999, written [*431] enforcement request, not alter she had made such a request.The January 19, 1999, letter therefore could not have constituted a written denial of Clark's enforcement request. Moreover, we did not hold in either of the decisions cited by the defendants that a building commissioner ora board could render Inapplicable the plain requirements of§2 merely by misconstruing them In the manner occurring in this case.Rather, we held only that trn*the absence of a written response from the building Inspector rale] was a defect that could be waived if it was not timely raised or objected to.See .•••. • - • • - • • ; Worcester County Christian Communications,Inc.v.Board of Appeals of Spencer,supra 22 Mass.App.Ct.at 85-86.Here,however, counsel forthe plaintiff did assert before the board In a timely manner that there was no case properly before the board due to the commissioner's failure to render any written decision denying any written enforcement request.There was therefore no waiver of the§1 requirements. (**205] In view of these circumstances,we could not hold that the board had power to entertain the Clark appeal without ignoring the plain requirements of§1.We have no power to reach such a result even If we were inclined to do so. See ROPT l td. Partnership https://www.lexis.com/research/retrieve?cc=&pushme=l&tmpFBSel=all&totaldocs=&tag... 12/7/2009 • Search- 100 Results -30 day appeal period for building permits Page 5 of 5 • v. Katin.431 Mass.601.603.729 N.E.2d 282(20001(court cannot ignore statute's plain words). In fact,unlike Its predecessor,G.L. c.40A,as amended by the Zoning Act of 1975,St.1975,c.808,§3, Is a"comprehensive statutory scheme."z Nantucket Land Council,Inc.v.Planning Bd.of Nantucket 5 Mass,ADD. Cf.206. 208-209.361 N.E.2d 937 (1977)(construing[***15] Subdivision Control Law, G. L. c.41. 64 81K et seo.),and cases cited. c-Won 7 sets up a simple administrative procedure whereby a person seeking enforcement of a local zoning ordinance or by-law against any other person allegedly violating the ordinance or by-law can make a request in writing for such enforcement to the building commissioner or other local official charged with enforcement of the ordinance or by-law,and ordinarily will receive a written response to such (*432] request,with a statement of reasons for the response, within fourteen days. Sections Q and 15 further provide that,if the enforcement request is denied,any person aggrieved by the denial may appeal to the local permit granting authority,so long as they do so within thirty days from the date of such written denial, We think that it would Interfere with the effectiveness of this procedure,and encourage precisely the type of litigation which the procedure was designed to replace, if we were to ignore the written decision requirement even under the circumstances presented here.See Vokes v.Avery W. Lovell,Inc.. 18 Mass.Aoo.Ct at 478&n.10. FOOTNOTES 7 We have previously observed the Importance of adhering strictly to the framework established by such a comprehensive scheme.See,e.g.,Cassanl v Planning Bd of Hull 1 Mass Ate CI 451 457 300 N E 2d 746(19731;t?✓noham v. City Council of Fitchburo.52 Mass,ADD.Ct. 566, 571.754 N.E.2d 1078(7001). [***16] We therefore conclude that the Judge properly annulled the Clark decision due to the commissioners failure to provide any written response to a ark's enforcement request.In reaching this result,we recognize that Clark Is being penalized for having relied on the commissioner's advice to proceed with her appeal even though he had failed to provide any such written response to Clark's enforcement request.We have previously noted,however,that HNS?*those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law."Stadium Manor,Inc.v.Division of Administrative Law Appeals 23 Mass.ADD. Ct. 958, 962.503 N.E.2d 43(19872, quoting from Heckler v. Community Health Servs. of Crawford County, Inc..467 V.S. 51.63.81 L. Ed. 2(142. 104 S.Ct. 2218(19841•See Ferrante v.Board of Appeals of Northampton.345 Mass. 151 163, 186 N.E.2d 471(19621 quoting from V.F. Zahodiakin Engr.Corp.v.Zoning Bd.of Adjustment of Summit, 8 NJ. 386,396.86 ,4.7d 127(19521("The plaintiff landowner Is presumed to have known of the Invalidity.,- and to have (***17] acted at his peril"). We also note, as did the Land Court judge,that Clark(or Crowley)can still file an entirely new request for enforcement with the commissioner should she choose to do so,and thereafter obtain any relief to which she Is entitled under the zoning ordinance with respect to the plaintiff's building.See it I. r.40,4. 8 7. Judgments affirmed. Source: Combined Source Set 7 j)•MA Stat*Cases,Combined Terms: 30 day appeal period for building permits (Edit$sar iISuggest Terms for My Search l FeedbackguXgur Search) View: Full Date/Time: Monday,December 7,2009.5:22 PM EST •Signal Legend: fp- Warning:Negative treatment is Indicated • Questioned:Validity questioned by citing refs • Caution:Possible negative b'eatrnent - Positive treatment is indicated 0- Citing Refs.With Analysts Available - Citation Intonation available •Click on any ShepaN's signal to Shepardize®Mat case. My LexisTM I Search I Research Tasks I Set a Document I$heoard's®I Alerts I Total I locator I Transactional Advisor I counseL$elertq IMslow I Lkiivery Manages!Qosslar I Swltcn Client I Preferences ISiaaQW I Bolo �.LCXIsNCXIse About Le, tnisi Temfi& tions I mtart DS rnnvright tel 2009 LexlsNexis,aCondidivision rrof Reed Elsevier Inc.All rights reserved. http s://wwv.lexis.com/research/retrieve?cc=&pushme=1&tmpFB S el=all&totaldocs=&tag... 12/7/2009 q� ®, RECEIVED W� AT HEARING fJ 1SrcaiMCaWhaaorr&iaea o2o2S Ter(781)383-0600 Fax(781)383-2734 cjklaw@comeast.net December 10,2009 Zoning Board of Appeals Town of Yarmouth Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: 143 River Street, South Yarmouth,MA Appeal of Building Commissioner's Letter dated July 16,2009 Dear Chairperson and Members of the Board of Appeals: I represent William Marasco,owner of the above captioned property. I am submitting this letter as a Memorandum in Support of his Appeal seeking a Reversal of the Zoning Commissioner's letter decision dated July 14, 2009,stating that the above premises is not a legal pre-existing two-family premises. The purpose of this Appeal is to correct a substantial injustice in which the Building Commissioner seeks to invalidate his determination and issuance of a building permit over three years from the date of issuance and after all work has been completed and a Certificate of Occupancy granted. STATEMENT OF FACTS The following is a brief summary of the relevant facts: 1. William Marasco purchased the property on November 29,2001. At the time he purchased the property,the garage apartment located on the premises,was fully furnished, linens were on the beds,towels on the racks, silverware,pots and pans, dishes and small appliances were in the cabinets. 2. The property was represented at sale to be a two-family residence. William Marasco confirmed this at the Yarmouth Building Department and obtained in 2001, a Rental Permit and Board of Health Permit. The premises were inspected at that time by the Building Commissioner,James Brandolini. 3. The apartment has been rented every year from 2001 to the present. 4. The Town of Yarmouth has and continues to assess the premises as a two- family residence. 5. In 2004, William Marasco obtained a Special Permit to perform certain upgrades and construct an addition to the premises (not relating to the then existing apartment). James Brandolini,the Building Commissioner,inspected the premises continuously during this work. 6. In October 2005, William Marasco inquired of the Building Commissioner as to what would be required to demolish and rebuild the garage apartment. No application was filed at this time. The Building Commissioner recommended that Mr. Marasco file for a Special Permit. The recommendation was apparently based on the fact that the Zoning Board of Appeals in 1967 had denied a Special Permit/Variance for the garage apartment due to the fact that it was unconnected to the house and constituted two residences on one lot rather than a two-family residence. 7. Records indicate that the then owner architecturally connected the garage to the house thus creating a two-family structure which was permitted under the then Zoning Bylaw. 8. The Building Commissioner also requested a legal opinion from the then Town Counsel John Creney regarding the breezeway connection and the use of the garage apartment. In order to obtain evidence of continued two-family use, Mr. Richard Bussiere,Vice President of TD Bank North,who served as trustee of the property, addressed the use of the garage apartment. Based upon the letter of Richard Bussiere and • the opinion of Town Counsel dated March 6,2006,opining that"the use of the unit was not discontinued; that the Section 104.3.1 of the Zoning Bylaw is not applicable; and that the pre-existing nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." The Petition for a Special Permit was withdrawn. 9. The Building Commissioner issued three permits. On March 21,2006, allowed the demolition of the existing garage/apartment, on March 31,2006,allowed the construction of a foundation, and on April 19,2006,allowed the construction of the garage and apartment. 10. The demolition of the garage was completed in April 2006. The foundation was completed in April 2006. The construction of the new garage and apartment commenced in April 2006 and continued until completion. A Certificate of Occupancy was issued on December 19,2006. 11. Richard W. Shea, a direct abutter,was present and observed the demolition, foundation pour and construction since April 2006. 2 12. No appeal was taken with respect to any of the permits issued within thirty days of their issuance. 13. On September 19,2006,the abutter,Richard W. Shea met with the Building Inspector to discuss the permits and correspondence in the file. 14. Over a year later on February 28,2008,the abutter, Richard W. Shea, corresponded with both the Building Department and Richard Bussiere,through the use of a veiled threat, obtained a statement that the trustee did not collect rents and could not verify any rent paid. As a result of the pressure from Mr. Shea,the Building Commissioner sought further legal opinions from Special Town Counsel Murphy. 15. From June 2008 through July 2009,there was substantial communication between the Building Commissioner,Town Counsel and the parties discussing the issue of abandonment which culminated in the Building Commissioner ordering William Marasco to take action in accordance with his July 16,2009 letter. THE ISSUE Whether The Building Commissioner's Letter Dated August 11,2009 And Letter Dated July 16,2009 Are Illegal And In Excess Of The Commissioner's Authority. The Petition before the Board raises substantial questions regarding fairness and justice. William Marasco purchased the property at 143 River Street after completing his due diligence with the Town of Yarmouth. He relied on the information and rental • permits received in good faith to purchase the property and rent the apartment. He has paid and continues to pay real estate taxes for the apartment. From 2004 to 2006,he applied for and received permits to improve the property. His applications and plans were clear and he fully represented his intention to continue the two-family use. All work was performed in accordance with his permits, and based upon the permits he received he expended substantial sums of money to construct a new garage apartment and a fully compliant Title 5 Septic System and received a Certificate of Compliance in December 2006. The building permits he received and the actions pursuant to them were open and obvious. The abutter,Richard W. Shea,was aware of William Marasco's project upon the issuance of the first demolition permit. Richard W. Shea did not appeal any of these permits to the Board of Appeals. Almost two years later he put continuous pressure on the Building Commissioner to reopen the permits and reconsider his earlier decision to grant the same. The abutter, Richard W. Shea,has succeeded in using the Building Commissioner as his surrogate in order to mask the fact that no timely appeal was taken. It is also important to note that the three permits which William Marasco received in 2006 were not simply processed as 3 an application,building fee and stamped approved,there was a several month inquiry into all relevant facts concerning the history of the property. Very few applications are subject to such intense scrutiny. Based upon the facts of the case and the opinion of Town Counsel,the Building Commissioner made a decision and issued the permits. The appeal period for each of these building permits ran until April 30, 2006 pursuant to General Laws Chapter 40A, Section 15. Mr. Shea did not appeal the decision to grant these permits during the required period. Consequently,his activities to convince the Building Commissioner to reverse his previous decisions almost two years later are untimely and improper. There is nothing in the law which allows the Building Commissioner to reconsider a previous decision and re-start the appeal period. The law is now clear in this regard. In 2009,the Court decided in the case of The Town of Freetown, et al. v. The Town of Freetown Zoning Board of Appeals,Mass. Land Ct. 17 LCR 304,that"...a building commissioner cannot reconsider a decision once issued." General Laws Chapter 40A, Section 15 provides that"any appeal under Section 8 to a permit granting authority shall be taken within thirty(30) days from the date of the order or decision which is being appealed...." Neither Commissioner Brandolini nor abutter Shea nor"any person"has a right to appeal after the expired date. This position is affirmed in the following cases: Gallivan v. The Zoning Board of Appeals,2008 Mass.App. Ct.,June 2,2008,Vokes,et al. v. Lovell, 1984, 18 Mass. App. Ct. 471, Elio v. Zoning Board of Appeals of Barnstable,2002, 55 Mass. App. Ct. 424. (See Appendix A attached hereto for all cases cited.) It may be important to clarify the statutory scheme to avoid the confusion which has existed in some permit granting authorities. It is based upon the mistaken belief that a town may take any action with respect to a permit provided the action is brought prior to the six year statute of limitations contained in General Laws Chapter 40A, Section 7. This usually involves actions such as mandamus to enforce the provisions of a zoning bylaw. While the issue of mandamus is not before the Board in this Petition,case law shows that mandamus is the remedy in typically three situations: 1 The building permit was obtained through fraud and misrepresentation; 2. The applicant failed to disclose the true purpose of the permit, i.e. a homeowner requests a permit to build a barn and doesn't disclose that it is for the purpose of running a non-permitted business; and 3. The permit holder does not build the structure in accordance with the permitted plans, i.e. the as-built structure violates setbacks, size or coverage requirements. The present matter involves none of these issues. 4 ISSUE—ABANDONMENT It appears from the correspondence of Building Commissioner Brandolini to the Zoning Board of Appeals that he expects this Board to listen to the evidence and determine whether abandonment has occurred. For the reasons stated in the previous section this proceeding cannot focus on the issue of abandonment because that issue had been fully investigated and decided in 2006 and no appeal was taken. Notwithstanding William Marasco genuinely believes that there has been no abandonment and the subsequent letters of Mr. Bussiere do nothing to alter his original statements that no action he took as trustee was intended to abandon the legal rights of the premises. CONCLUSION The procedure for obtaining permits and appealing permits is set forth in General Laws,Chapter 40A which prescribes specific timetables for events to occur. The courts have consistently upheld the time requirements in order to provide a well defined procedure for all to follow. All matters must have finality. If property owners,banks, cities and towns could not rely on the finality of unappealed building permits,no property owners,banks, cities and towns would ever be willing to undertake the risk of going forward, expending large sums of money and altering lifestyles if there was a possibility that the necessary authorizations or approvals of the project could be set aside, at a later date,by the actions of a town official or an abutter. William Marasco respectfully requests that the Board of Appeals find that the Building Commissioner's Order dated August 11,2009 be vacated. Respectfully submitted, Chars BJ. umphrepltsquire Attorney for William Marasco CJH:epm Attachment 5 Get a Document-by Citation-ALM GL ch. 40A, § 15 Page 1 of 13 LexisNexis TOW Research System - - swell cues lrw,mnrnlsY,cxnli?: ¢w My texts". Search Research Tasks Get a DocumeMXShepardejAlertsTrotal Lltigator'Transactional Advisor'Counsel Selectorl D.w4arJ Ifwn I Et FOCUS"'Terms! Search Within original aoulta )I 1 _. �ae ( °;[aware Advanced... Service: Get by LEXSTATS TOC: Annotated Laws of Maesachusggg>Chaptep Zoning S IS.Appellate Procedure. Citation: MASS.ANN.LAWS 40A 15 ALM GL ch.40A,§15 ANNOTATED LAWS OF MASSACHUSETTS Copyright m 2009 Matthew Bender&Company,Inc., a member of the LexisNexis Group. All rights reserved. ***CURRENT THROUGH ACT 104 OF THE 2009 LEGISLATIVE SESSION*** PART I ADMINISTRATION OF THE GOVERNMENT TITLE VII CITIES,TOWNS AND DISTRICTS Chapter40A Zoning GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY ALM GL ch.40A,§ 15 (2009) §15. Appellate Procedure. Any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.The petitioner shall file a notice of appeal specifying the grounds thereof,with the city or town clerk,and a copy of said notice,including the date and time of filing certified by the town clerk,shall be flied forthwith by the petitioner with the officer or board whose order or decision is being appealed,and to the permit granting authority,specifying in the notice grounds for such appeal. Such officer or board shall forthwith transmit to the board of appea Is or zoning administrator all documents and papers constituting the record of the case In which the appeal is taken. Any appeal to a board of appeals from the order or decision of a zoning administrator,if any,appointed in accordance with section thirteen shall be taken within thirty days of the date of such order or decision or within thirty days from the date on which the appeal, application or petition in question shall have been deemed denied In accordance with said section thirteen,as the case may be,by having the petitioner file a notice of appeal,specifying the grounds thereof with the city or town clerk and a copy of said notice Including the date and time of filing certified by the city or town clerk shall be flied forthwith In the office of the zoning administrator and In the case of an appeal under section eight with the officer whose decision was the subject of the Initial appeal to said zoning administrator.The zoning administrator shall forthwith transmit to the board of appeals all documents and papers constituting the record of the case in which the appeal is taken.An application for a special permit or petition for variance over which the board of appeals or the zoning administrator as the case may be,exercise original jurisdiction shall be filed by the petitioner with the city or town clerk,and a copy of said appeal,application or petition,including the date and time of filing,certified by the city or town clerk, shall be transmitted forthwith by the petitioner to the board of appeals or to said zoning administrator. Meetings of the board shall be held at the call of the chairman or when called In such other manner as the board shall determine In Its rules.The board of appeals shall hold a hearing on any appeal,application or petition within sixty-five days from the receipt of notice by the board of such appeal,application or petition.The board shall cause notice of such hearing to be published and sent to parties in Interest as provided in section eleven.The chairman,or In his absence the acting chairman,may administer oaths,summon witnesses,and call for the production of papers. The concurring vote of all members of the board of appeals consisting of three members, and a concurring vote of four members of a board consisting of five members,shall be necessary to reverse any order or decision of any administrative official under this chapter - or to effect any variance In the application of any ordinance or by-law. All hearings of the board of appeals shall be open to the public.The decision of the board shall be made within one hundred days after the date of the filing of an appeal,application or petition,except in regard to special permits,as provided for In section nine.The required time limits for a public hearing and said action,may be extended by written agreement between the applicant and the board of appeals.A copy of such agreement shall be flied in the office of the city or town clerk.Failure by the board to act within said one hundred days or extended time,If applicable,shall be deemed to be the grant of the appeal,application or petition.The petitioner who seeks such approval by reason of the failure of the board to act within the time prescribed shall notify the city or town clerk,in writing,within fourteen days from the expiration of sald one hundred days or extended time,if applicable,of such approval and that notice has been sent by the petitioner to parties in Interest.The petitioner shall send such notice to parties in Interest,by mall and each notice shall specify that appeals,if any,shall be made pursuant to section seventeen and shall be filed within twenty days after the date the city or town clerk received such written notice from the petitioner that the board failed to act within the time prescribed. After the expiration of twenty days without notice of appeal pursuant to section seventeen,or,if appeal has been taken,after receipt of certified records of the court In which such appeal Is adjudicated,indicating that such approval has become fl nal,the city or town clerk shall Issue a certificate stating the date of approval,the fact that the board failed to take final action and that the approval resulting from such failure has become final,and such certificate shall be forwarded to the petitioner.The board shall cause to be made a detailed record of Its proceedings,Indicating the vote of each member upon each question,or If absent or falling to vote, Indicating such fact, and setting forth clearly the reason for Its decision and of its official actions,copies of all of which shall be filed within fourteen days In the office of the city or town clerk and shall be a public record,and notice of the decision shall be mailed forthwith to the petitioner,applicant or appellant,to the parties in Interest designated in section eleven,and to every person present at the hearing who requested that notice be sent to him and stated the address to which such notice was to be sent.Each notice shall specify that appeals,If any,shall be made pursuant to section seventeen and shall be filed within twenty days after the date of filing https://www.lexis.com/research/retrieve?_m=abbd9e269ad745edb9d4c 13 044eafe72&csvc... 12/7/2009 • • ` 'Search- 100 Results- 30 day appeal period of building permit Page 1 of 4 • LexisNexis°Total ReKearch System • Froth Cliont I Puf'b IMyr Cul rflitrdv My Leah'". Search Research Tasks Get a DocumentTShepaM#XAlartaTTotal Lttlgator`Transactional AdvlsorlCounoel Selector MAW I lnmWI gJ ._.__... _..__.s_1.... ..`-` FOCUS r"Terms) 'Search Within oreResults ewMn•totoo)o) ,+� Advanced,,, IPA Results..(100)\ Cawa.heaj — • Source; Combined Source Set Cel•MA State Cases,Combined Terms: 30 day appeal period of bonding permit (Edk Search I Suooast Trnns forMv Seam I Feedback on Your Search) +-Select for FOCUSTM or Delivery 17 LCR 304, w;2009 Mass.LCR LEXIS 87, a#. TOWN OF FREETOWN,by and through Its BOARD OF SELECTMEN and BUILDING COMMISSIONER v.TOWN OF FREETOWN ZONING BOARD OF APPEALS,JAMES FRATES,GARY GUINEN,DANIEL A. LORANGER,and KIM PINA,as members of the TOWN OF FREETOWN ZONING BOARD OF APPEALS,and JOHN CHACE Misc.Case No.372546 MASSACHUSETTS LAND COURT 17 LCR 304; 2009 Mass.LCR LEXIS 87 April 22,2009,Decided CORE TERMS:building permit application,septic,zoning,summary judgment,frontage,reconsider,appeal period,material fact, moving party,constructive,buildable,municipal,issuance,genuine,notice,sewage disposal,sanitary,conform,matter of law, parcel of real,property known,Issues of material fact,party opposing,triable issue,opposing party's,special permit, administrative decisions,demonstrating,prerequisite,favorable • HEADNOTES Zoning Variance-Constructive Grant-Appeal Period for Oral Building Permit Dental-Appeal of Septic Plan Denial SYLLABUS • ['e1] • Where a Freetown lot owner failed to appeal the Building Commissioner's oral rejection of his building-permit application within 30 - days,the subsequent constructive grant by the ZBA of his appeal was a nullity as the ZBA lacked jurisdiction to hear the appeal. The ZBA also lacked jurisdiction to hear the landowner's appeal of the Building Commissioner's denial of his septic-plan application because that appeal should have been taken to the Board of Health. COUNSEL[Megan B. Bayer.Esc,.,Kopeiman and Paige,P.C.for the Plaintiff. Patrick T.Matthews.Esa..,Law Offices of Patrick T. Matthews for the Defendant. )URGES,Charles W.Trombiy,Jr.,Justice. • OPINION BY:TROMBLY OPINION [e304] DECISION Plaintiff,the Town of Freetown,commenced this case on February 28,2008,as an appeal,pursuant to G.L r.40k 41L of a constructive approval by the defendant,the Town of Freetown Zoning Board of Appeals,of(1)a building permit application;(2)a septic plan;and(3) a variance concerning a parcel of real property, known as and numbered 0 Cleveland Park Road in Freetown. On October 1,2008,plaintiff flied a Motion for Partial Summary Judgment.Defendant John Chace opposed the motion on December . 10,2008.On January 27,2009,plaintiff (**21 flied a reply to the defendant's opposition.The motion was argued on February 6, 2009,and is the matter presently before the Court. After reviewing the record before the Court,I find that the following facts are not in dispute: 1.Paul R. Bourgeois Is the Building Commissioner,Zoning Enforcement Officer, and Health Agent of the Town of Freetown. 2.Defendant John Chace is the owner of a parcel of real property,known as and numbered 0 Cleveland Park Road In Freetown ("Property"). 3.On February 6,2007,Mr.Chace went before the Town of Freetown Planning Board for a determination on whether the Property httnc•//www lexie.enm/research/retrieve?cc=&nushme=l&tmvFBSet=all&totaldocs=&tag... 12/7/2009 • Search- 100 Results - 30 day appeal period of building permit Page 2 of 4 was located on a valid way In existence when the subdivision control law became effective In Freetown,pursuant to Article 11,§ 11.3. 4.The Planning Board voted to direct the Administrator to submit a letter stating that the Planning Board determined that Cleveland Park Road is"a way In existence prior to subdivision control and of sufficient width and grade,"as described in Article 11,§ 11.3,but that the Board makes no determination regarding frontage,area,or buildability of the Property.This letter was submitted on February 27,2007. - 5.The Board also Informed Mr.Chace that [**3]he could only obtain a building permit from the Building Commissioner. 6.On or before February 7,2007,Mr.Chace filed an application with the Building Commissioner for a building permit to construct a single-family dwelling on the Property. 7.On February 7,2007,the Building Commissioner orally denied the building permit application to Mr.Chace,on the ground that the Property lacked sufficient frontage on a valid way,pursuant to Article 11,§ 11.3 of the Town of Freetown General and Zoning By- laws. ylaws. 8.During that conversation,the Building Commissioner informed Mr.Chace that if the Planning Board determined that Cleveland Park Road compiled with Article 11,§ 11.3,then he would reconsider his decision. 9.The Building Commissioner wrote a letter dated February 7,2007,denying the building permit application,on the ground that the property lacked sufficient frontage,pursuant to Article 11,§11.3. 10.Subsequently,Mr. Chace spoke with the Building Commissioner.The Building Commissioner instructed plaintiff to file a Septic Plan as a prerequisite to the Issuance of the building permit. 11.In accordance with Mr.Bourgeois's Instructions,on August 28,2007,Mr.Chace filed a f**4] plan with the Board of Health of the Town of Freetown,titled"Sanitary Sewage Disposal System Cleveland Park Road,"for an on-site sanitary sewage disposal system on the Property("Septic Plan"). 12.By letter dated September 26,2007,Mr. Bourgeois denied the Septic Plan,on the ground that the proposed system did not meet the setback requirements of the State Environmental Code,Title V,§310 CMR 15.211("September Decision"). 13.The first sentence of the September Decision states:"I am In receipt of your plan labeled'Sanitary Sewage Disposal System Cleveland Park Road'...." 14.The September Decision continues by listing four"Issues associated with the Septic Design." 15.In the September Decision,Mr.Bourgeois then states that 9n addition to being the health agent,I am also the Building Commissioner and the Zoning Enforcement Officer." 16.Mr. Bourgeois continues that"the septic system Issues are Irrelevant,as I do not feel the lot Is buildable as it lacks frontage on a public way,a town approved way,or a way In existence prior to subdivision control." [*305] 17.The September Decision concludes that"I must deny approval of your septic plan and site plan,as it does not conform (**5]to the Town of Freetown Health Regulation and The Town of Freetown Zoning Bylaws." 18.On October 24,2007,Mr.Chace appealed the September Decision to the Zoning Board of Appeals.The appeal challenges both the denial of the building permit application and the denial of the Septic Plan. 19.The Board did not issue a decision on the Building Permit application within one hundred days of the Issuance of the September Decision. 20.On February 11,2008,Mr.Chace filed a notice of constructive approva I with the Town Clerk of the Town of Freetown.This appeal followed. *** Summary judgment Is granted where there are no issues of material fact and when the moving party Is entitled to judgment as a matter of law.Mass.R.Civ. P.56(cl; „ss., so v omm'r. of Corr 390 Mass.419.422(1983); rmtv.Nat'l.Rank v,Dawes-169 Mass.550.553(19761.The moving party bears the burden of demonstrating affirmatively the absence of a triable issue and its entitlement to Judgment as a matter of law.pederson v. Time.Inc..404 Mass. 14, 16-17 (1989).In viewing the record before it,the Court reviews"the evidence In the light most favorable to the nonmoving party...."Donaldson v.Ferrakhan.436 Mass.94.96(2002). In [**61 weighing the merits of a summary Judgment motion,the court must address two questions: (1)whether the factual disputes are genuine,and(2)whether a fact genuinely In dispute is material. •w. • •nv•d Ad- a -. -I . n 677.683(1988)(citing Anderson v. Liberty Lobby.477 U.S.242.247-48(1986)1."M to materiality,the substantive law will identify which facts are material.Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.'Anderson.477 U.S.at 246(cited in Carey v.New Enoland Oman Bank.446 Mass.270.278 • 1200611;Molly A. v. Comer.of the Dent.of Mental Retardation.69 Mass.Aoo.Ct. 267.268 n.5(20071.In order to determine If a dispute about a material fact is genuine,the court must decide whether"the evidence is such that a reasonable(fact finder)could return a verdict for the non-moving party."Anderson.477 U.S.at 248. With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial,it may demonstrate the absence of a triable Issue either by submitting affirmative evidence that negates an essential [**7] element of the opponents case,or"by demon strating that proof of that element Is unlikely to be forthcoming at trial."F(esner v, Technical Communications Coro..410 Mass.805,809(1991).The party opposing summary judgment`cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.'LaLonde v. Elssner.405 Mass.207.209(19761. However,where appropriate,summary judgment may enter against the moving party.Mass. R.Civ.P. 56(r). hftnc•/hxnvty levie rnm/reCearrh/retrirve9rr.Rrnttchme=1 RrtmnFRSel=allXrfntaldnrc=,Prtna 19/7/90119 • • •' Search- 100 Results-30 day appeal period of building permit Page 3 of 4 When the court considers the materials accompanying a motion for summary judgment,the Inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.Attornev Gen.v. Bailey. 386 Mass.367.371 (19821.The court does not"pass upon the credibility of witnesses or the weight of the evidence or make Its own decision of facts."Id.at 370.However,the court may only consider evidence which meets the requirements of Mass.R, Civ.P.56(e).That evidence must come from'pleadings,x depositions,answers to Interrogatories,and responses to requests for admissions under Rule 36,together with-affidavits,if any...." (**8]Mas R Iv P 6O. FOOTNOTES x A motion for summary judgment can rest in whole or in part on facts set forth in the moving party's pleadings if,but only If, they are conceded In the opposing party's pleadings. Cmtv. Nat'(.Bank,369 Mass.at 557 n.6.It may also rest on the ailegatlons • contained In the opposing party's pleadings. G L c. 231.6 87("In any civil action pleadings shall not be evidence on the trial,but the allegations therein shall bind the party making them"). In the Instant matter,there are no genuine issues of material fact,within the meaning of Mass. R.Clv. P.56(cl,and,therefore,this case Is proper for summaryjudgment.Rule 56(c). Generai I aw5.chapter 40A. § 17 requires that'(t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts,and,upon the facts as so determined,annul such decision If found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require."40A,§ 1.2.The Supreme Judicial Court has Interpreted 5 17 to require that a court hearing an appeal pursuant to 40A, 4 17 apply a combination of de novo (**9] review and deference to the judgment of the municipal authority.Bicknell Realty Co. v. Bd. of Anneal of Boston.330 Mass.676.679(19531(and case cited).The Trial Court must review the evidence and make findings of fact without deference to the board's findings.Id.; Willard v.Bd. of Appeals of Orleans. 25 Mass.Apo. Ct. 15. 24(19871;see RI.c.40A. 5 17. In this review,the court Is not limited to the evidence that was before the board.Bicknell Realty Co.. 330,Mass.at 679;Marr v.Back flay Architectural commit,-32 Mass.ADD.Ct.962.463(19971; .. v.•. . .• .•r- • h 1•a .r r. ' •. . Aooeal of Boston.25 Mass.Aoo.Ct. 704.713-24(19881. However,this review is circumscribed by the requirement to defer to the judgment of the municipal board.Pendergast v. Bd. of Appeals of Barnstable. 331 Mass.555.557-58(19541; Geryk v. Toning Appeals Bd.of Easthampton. 8 Mass ADD.Ct. 683,684 119791; • • • • . •• • •• • ' -r -to "-- =•• S •' ' • .The court Is solely concerned with "the validity but not the wisdom of the board's action.' Wolfman v. Bd. ofApoeals of Brookline. 15 Mass.Apo.Ct 117. 119(19831. A (**10]court hearing a fi 17 appeal Is not authorized to make administrative decisions. Pendergast. 331 Mass.at 557-58;Geryk. $.hasp.Ann.Ct.at 684.If reasonable minds may (*306] differ on the conclusion to be drawn from the evidence,the board's judgment Is controlling.ACW Realty Mamt.,Inc v.Planning Bd.of Westfield.40 Mass.ADD.Ct. 247.246(19961;Dowd v. Bd.of Appeals of Dover.5 Mass.Aoo.Ct. 148.15455(19771; Cooley v. Bd.of Appeals of Canton. 1 Mass ADD.Ct.821(19731.However, in limited circumstances the Trial Court may substitute Its judgment for that of the board's,where'justice and equity'require.RI.r. 40A.4 17;Pendergast. 331 Mass.at 558. Therefore,the court may overturn the board's decision only If the decision Is"based on a legally untenable ground or Is unreasonable, whimsical,capridous or arbitrary."'Britton v.Zonlno Bd. of Appeals of Gloucester.59 Mass.Aoo.Ct.68.72(20031;McGibbon v. Pd.of Appeals of Duxbury.356 Mass.635.639(19701;ACW Realty Momt..Inc..40 Mass.ADo.Ct.at 246.However,where the court's findings of fact support any rational basis for the municipal board's decision,that decision must stand.MacGlbbon. 356 Mass at 639; (**11] Davis v.Zoning Bd. of Chatham.52 Mass Aoo.Ct. 349.356(70011;ACW Realty Mamt.,Inc..40 Mass.Aoo.Ct. at 246. In the Instant case,Mr.Chace denies ever having received Mr. Bourgeois's written denial of the building permit application,dated February 7,2007. Nonetheless,Mr. Chace admits that Mr.Bourgeois,In his capacity as the Building Commissioner of the Town of Freetown,orally denied the application to him,the same day. x Nothing In General Laws chapter 40A requires that a zoning decision be made In writing.See 40A,§_Q.However,this does not mean that a municipality may not require a writing.See Peterson v. Cargill 14 LCR 403.406(20061(Misc.Case Nos. 267044)(Long,J.).Here there is nothing In the record to Indicate that the Town of Freetown General and Zoning By-Laws have such a requirement. FOOTNOTES a Defendant Chace argues that the Issue of whether the oral denial of the building permit application was an effective decision is a question of fact,which necessarily bars determination of this case by summary judgment.That this oral denial occurred is undisputed.It is clear,then,that the determination of whether an oral denial of a building permit application by the (**12] Building Commissioner Is an effective administrative decision Is a question of law.Therefore,this case Is proper for summary judgment. Moreover,the purpose of the writing requirement is,in part,to provide sufficient notice to aggrieved neighbors who may wish to seek appellate review.See • .. • . .1.• =• • 1 ,. -, i. . ' ka '- '• (Misc Case No. 182042)(Kilbom, I.).Here,that concern does not apply;Mr.Chace,himself,was the aggrieved party,and he was given notice directly of the Building Commissioner's decision.Therefore,the Building Commissioner's February 7,2007,verbal denial of the building permit application was a valid and effective decision("February Decision").Accordingly,I rule that there was no timely appeal of the February Decision. Thus,the Zoning Board of Appeals did not have the authority to constructively approve the building permit application. The appeal period for this decision ran until March 9,2007,pursuant to G.L.c.40A,4 15.Mr.Chace did not appeal from this decision during this period.Accordingly,I rule that the appeal of the denial of the building permit application is untimely. Mr.Chace next argues that,(**13]the February Decision left open the possibility that the Building Commissioner would reconsider that dedsion if Mr.Chace provided further evidence that the Property met frontage requirements,pursuant to Article 11,§11.3,and that the Building Commissioner did so reconsider that decision In the September Decision.The February Decision states that the "[Building Commissioner]will reevaluate this decision if the Planning Board determines that Cleveland Park(Road)is'a way in • 1+ttnc'/Inrxnxr 1pv]e rnm/racparrh/retrievp7r.r.=&nnchmr.=1.trtmnFRSel=sill&tntaldnec=Rrtap. . 17/7/2009 • '' Search- 100 Results- 30 day appeal period of building permit Page 4 of 4 existence prior to subdivision control and of sufficient width and grade'as described In Article 11,Sec. 11.3 and that the lot In question has frontage on Cleveland Park Road."(Pl.'s Statement of Material Facts Supp.Summ.3,Ex. B).When the Board made such a determination,Mr.Bourgeois asked Mr.Chace to file a Septic Plan as a prerequisite to the issuance of the building permit.In the September Decision denying the Septic Plan, Mr.Bourgeois states that'the septic system issues are Irrelevant,as I do not feel that lot is buildable as it lacks frontage on a public way,a town approved way,or a way In existence prior to subdivision control."(Pl.'s Statement of Material Facts Supp.Summ.J.Ex.D, [**14] 2). There is nothing In the record to Indicate that the Freetown Building Commissioner has the authority to make a partial or intermediate decision on a building permit application,which decision he or she may reconsider at a later time and,thereby, restart the appeal period.In the Instant case, Mr.Chace flied his application for a building permit;the February Decision ultimately decided that application;and Mr.Chace had one,thirty-day appeal period In which to appeal that decision,which he missed. It is true that Mr.Bourgeois misstated his authority to reconsider the February Decision.The fact that he misunderstood and erroneously represented to Mr.Chace his authority to do so does not change the fact that a Building Commissioner cannot reconsider a decision once issued.Similarly,Mr.Chace did not have the ability to move Mr. Bourgeois to reconsider his decision.The only recourse that Mr. Chace had was to appeal for zoning relief from the Board of Appeals within the thirty day appeal period. Moreover, prudence dictates that Mr.Chace,by his counsel,should have preserved his appellate rights by filing an appeal of the February Decision within the thirty-day period,while (**15) pursuing the instructions of the Building Commissioner. Mr. Chace,by his counsel,blames Mr.Bourgeois for causing Mr.Chace to file his appeal late;however,the evidence makes it dear that Mr.Chace received the Board's letter opining that Cleveland Park Road met the requirements of Article 11,§ 11.3 on February 27,2007--within the thirty day appeal period--but that he waited until August 28, 2007 to further pursue Mr.Bourgeois's instructions.Even if Mr. Bourgeois can be blamed for misleading Mr.Chace,Mr.Chace must share some of the blame for not acting expediently. On September 26,2007,when Mr.Bourgeois denied the Septic Plan,the only filing pending before him was the Septic Plan; [*307] there was no longer a building permit application pending before the Building Commissioner.Thus, Mr.Bourgeois could only have been acting in his capacity as the Health Agent of the Town of Freetown,and he could only have been acting on the Septic Plan. Although Mr.Bourgeois,In the September Decision,does recall the Issues he finds as Building Commissioner with the Property's alleged lack of frontage,this was extraneous and irrelevant to the decision. His statements in this regard,although [**16] they admittedly make the decision less dear,cannot be construed,legally,as a re-decision of the building permit application.This decision was not within the power of a Building Commissioner. I agree that the September Decision Is somewhat unclear.Mr.Bourgeois first lists"Issues associated with the Septic Design,"but then states that they are irrelevant,because the lot Is not buildable In any event,because of Its lack of frontage.(Pl.'s Statement of Material Facts Supp.Summ.3. Ex. D, 1).However,it Is clear from the opening sentence of the decision that the subject Is the Septic Plan.Most persuasively, Mr.Bourgeois's conclusion Is that"I must deny approval of your septic plan and site plan,as It does not conform to the Town of Freetown Health Regulations and The Town of Freetown Zoning Bylaws."(Pl.'s Statement of Material Facts Supp.Summ.J.Ex.D,2)(emphasis added).Regardless,the building permit application had been previously decided,and no matter how confusing this language,the September Decision could only have decided the Septic Plan.Accordingly,I rule that the September Decision decided only the acceptability of the Septic Plan. Finally,G.L.c 111.56 31E (**17] and 32 provides that the Board of Health retains Jurisdiction over a decision of a health officer. 111,66 31F and az.Mr.Chace could only have appealed the September Decision to the Board of Health of the Town of Freetown. . Accordingly,I rule that the Zoning Board of Appeals did not have jurisdiction to hear and decide that aspect of the appeal. CONCLUSION - For the foregoing reasons,this Court concludes that the alleged constructive approval by the Zoning Board of Appeals of the Town of ' Freetown of Mr.Chace's building permit application and Septic Plan was not proper.Mr.Chace's appeal of the Building Commissioner's decision to deny his building permit application was untimely.The February 7,2007 oral denial of the building permit application was a valid derision,which started the appeal period.Mr.Chace did not appeal the decision In that period. Moreover,the Building Commissioner did not have the authority to reconsider his decision and,thereby,restart the appeal period. Nor did Mr.Chace have the ability to move the Building Commissioner to do so.As a result,the September Decision decided the acceptability of the Septic Plan,only.The only filing pending before Mr.Bourgeois (**18] was the Septic Plan,which he clearly concluded did not conform with the Town of Freetown Health Regulations. Furthermore,any appeal of the decision of the Health Agent must be brought to the Board of Health of the Town of Freetown and not to the Zoning Board of Appeals.Therefore,the Zoning Board of Appeals did not have authority to approve the Septic Plan.Accordingly,the plaintiff,Town of Freetown's Motion for Summary Judgment is hereby ALLOWED. • Judgment to issue accordingly. - Source: Combined Source Set 7 0•MA State Cases,Combined Terms: 30 day appeal period of building permit (Fria Search I Su�gesl Terms for My Searth I Feedback en Your Search) Mew: Fun Date/rent Monday,December7,2009.2:23 PM EST My l fade'[Leant'Research Tasks I gni-Irma I Shepard's®I Alerts I Total Litigator I Transactional Advisor I Counsel Selector tllei90t I pelhery ManaoetI pomlet I Switch Client I Preferences I%M aid itieIn (Zir LexisNexis�-amass, I Terms a condition! I rontart ria COnyrieht 71 2009 LexisNexis,a division of Reed Elsevier Inc Alt rights reserved. • Jittnrlhtnnml/IP.Ytq rnrm/Tr.SPArr}t/refrie.ve2c .=R!T11tghme,=1 R.fr17nFRSel=all Ctntn1dne.0=R'fact 12/7/9009 ' Search- 100 Results-30 day appeal period for building permits Page 1 of 6 • • Switch Mani I PiNriunr..n I Cryo ax I',2i140w My texts`* Search Research Tasks Get a DocumentTShepard'st' AlerlsXTotal LhlgatorlTransacdonal Advlsor'Counsel Selector, cower!4slOngI FOCUS"'Terms Search Wnhin original Results(1-100) .;_ _.. Advanced.,. .A.....P...s......__..(.100 �Nl Heemis•(100)�q CRees•(s00) Source: Combined Source Set/(;]-MA State Caen,Combined Terms: 30 day appeal period for building permits (Edit Search I Suaaest Terms for My Seardi I Feedback en Your$panda) iSelect for FOCUS" or Delivery 0 15 LCR 17, *;2007 Mass.LCR LEXIS 5, ** KATHLEEN C. GALUVAN v.KENDALL P. BATES,WILLIAM E.POLLETTA,RICHARD L SEEGEL, as they are Members of the TOWN OF WELLESLEY ZONING BOARD OF APPEALS, EDGAR A. PHANEUF,JR.,BUILDING INSPECTOR and the ZONING ENFORCEMENT OFFICER of the TOWN OF WELLESLEY,TOWN OF WELLESLEY ZONING BOARD OF APPEALS,RICHARD EYGES,COLLEEN EYGES, THOMAS ABATE,HELEN WONG t At the Inception of this action,Richard and Colleen Eyges(collectively Eygeses)owned Locus.Thereafter,Thomas Abate(Abate) purchased Locus at a foreclosure sale and moved to Intervene. His motion was allowed.Before the foreclosure deed was recorded, - Abate assigned his purchase right to his wife, Helen Wong(Wong)and Wong is the record title holder of Locus. In this court's order of March 9,2006,returning the case to active status following remand from the Appeals Court,Wong was substituted for Abate. Misc Case No. 268074 MASSACHUSETTS LAND COURT 15 LCR 17; 2007 Mass. LCR LEXIS 5 January 5,2007,Decided SUBSEQUENT HISTORY:Affirmed by Gallivan v 'rn"inn Rn of appeals 2008 Mass ADD LEXIS 576(Mass App,._Ct, June 2, 2008) PRIOR HISTORY:Gallivan v. Zonina Bd.of Appeals,63 Mass.ADD.Ct. 1105,823 N E 2d 436 2005 Mass.Apo.I FXIS 211(2005) CORE TERMS:bylaws, building Inspector's,building permit,zoning,yard,Issuance,setback, notice,feet,abutter,Zoning Act, enforcement action,plot,aggrieved,new house,rear,summary Judgment,received notice,easterly,Inspector,modular,building permit,direct appeal,ordinance,abutting,mandamus,square,street,appeal period,public hearing HEADNOTES Enforcement Action-Timeliness-Failure to Appeal Building Permit Within 30 Days SYLLABUS - . [**1] A Wellesley residential abutter who received notice both by mall and by publication of the Issuance of a building permit for the construction of a home on an abutting property in violation of a sldeyard setback could not bring an enforcement action four months later for the removal of the then substantially complete modular home but should have appealed the building permit within 30 days of its issuance under Section a of the Zoning Act. COUNSEL'Kathleen C.Gallivan,pro se. Albert S.Robinson. Esa.., lams A. K.Goodhue. Esp..,Grindle, Robinson,Goodhue&Frolin,for the Defendant. Valerie S.Carter, Esp..,Carter&Doyle,LLP,Lexington Office Park,for the Defendant. JUDGES: Karyn F.Scheler,Chief Justice. OPINION BY:SCHEIER OPINION [*17] DECISION DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS In this action,Kathleen C.Gallivan(Plaintiff)appeals,under G. L.e.40A. 6 17,from a decision(Decision)of the Town of Wellesley Zoning Board of Appeals(Board), upholding the refusal of the Wellesley Building Inspector(Building Inspector)to enforce a setback requirement of the Wellesley Zoning Bylaws(Bylaws)against property(**2] owned by Defendants Abate and Wong • https://wvw.lexis.com/research/retrieve?cc=&pushme=1&tmpFBSel=all&totaldocs=&tag... 12/7/2009 . Search- 100 Results -30 day appeal period for building permits Page 2 of 6 • (Locus). On April 18,2006,Plaintiff flied a Motion for Summary Judgment seeking: 1)an annulment of the Decision; 2)a declaration [*181 that the Bylaws'20-foot setback requirement applies to Locus; 3)an order requiring the Building Inspector to enforce the setback - - requirement against Locus;and 4)an award of Plaintiff's costs and reasonable attorneys'fees. In addition to the pleadings,the summary Judgment record consists of various documents and memoranda required by Land Court Rule 4,together with exhibits attached to the parties'submissions.Plaintiff's motion was heard by this court on May 19,2006. A motion for summary judgment may be granted only where there are no genuine Issues of fact In dispute that would preclude disposition of the case as a matter of law.See Community Nat'/. Bank v.Dawes, 369 Mass. 550. 553-56(19761.Plaintiff,as moving party,bears the burden of affirmatively showing that there is no triable issue of fact.See Na Bros. Constr.,Mr. v.rranney,436 Mass 638,641-44(7007).As an Initial matter,this court finds that the material facts are undisputed [**3] and the case therefore is ripe for disposition based on the summary Judgment record. "Summary judgment,when appropriate, may be rendered against the moving party."Mass. R.Clv, P. 56(c1.For the reasons set forth below,this court finds that summary Judgment may issue in favor of Defendants,based on the following undisputed facts: 1.Locus Is a corner lot having an area of 10,000 square feet and Is located at 89 Manor Avenue,Wellesley.It has frontage on both Manor Avenue and Oakdale Avenue,and Is located in a"Single Residence District"and a"Ten Thousand Foot Area Regulation District" under the Bylaws. • 2. Plaintiff is the owner of property located at 85 Manor Avenue(Plaintiff's Property),abutting Locus on its easterly boundary. 3. Bylaws Section XIX(Yard Regulations-Part B-Requirements), as amended through March 2000, provides that a building on a lot In a Single Residence District must have a minimum side yard width of twenty feet and a minimum rear yard depth of ten feet. 4.On several occasions during November and December, 1999,the Wellesley Building Inspector met with the Eygeses,who then owned Locus, to discuss and review their plans to site t**4] a new house on Locus. Mr.Eyges told the Building Inspector that because the planned house was modular, its construction would largely take place off-Locus. 5.In reviewing Mr.Eyges's foundation plan in mid-November, 1999,the Building Inspector determined that because the proposed house would have a different orientation than the then-existing house(the new house would face Oakdale Avenue rather than Manor Avenue),the side of the new house abutting Plaintiff's Property was considered the rear yard, rather than a side yard. 6. Based on the determination that the yard abutting Plaintiffs Property was a rear yard,the Building Inspector concluded that the necessary setback for that portion of the house was ten feet. 7.After reaching his conclusion,the Building Inspector Informed Mr. Eyges that the rear yard setback shown on the foundation plan was in compliance with the Bylaws'setback requirement. 8.On November 19,1999,Mr. Eyges issued a check in the amount of$400.00,to Chelsea Modular Homes In Marlboro,New York,as a deposit on the construction of a modular house to be sited on Locus. 9.In early December,1999,the Building Inspector approved [**5] Mr. Eyges's plans for his new house.The Building Inspector told Mr.Eyges that there were no substantive deficiencies with the plans and,once certain procedural steps were completed, Including asbestos testing and abatement and disconnecting utilities in the existing house,the Building Inspector would issue a written demolition permit for the then-existing house. 10.The Building Inspector also told Mr. Eyges that he could proceed to di rect the modular home company to begin construction of the new house off-site. 11.On December 16, 1999,Mr. Eyges Issued a second check in the amount of$ 16,300.00,to Chelsea Modular Homes,which began construction. 12.On January 13, 2000,and January 20, 2000,notices of the Wellesley Planning Board's public hearing on certain proposed amendments to the Bylaws were published in the Wellesley Townsman,a local newspaper. One such amendment proposed to ci arify the yard designations for corner lots by adding the following language to Section XIX: "Regularly shaped corner lots shall have two front yards,two side yards and no rear yard.Whenever uncertainty exists as to which yard requirement applies In a particular case the[**6] determination shall be made by the Inspector of Buildings." The Planning Board hearing was scheduled for February 1,2000. 13. Bylaws Section XXIII•Enforcement and Penalties-Part B provides: "Before Issuing any permit,except for work on an existing building or structure or for a new structure of less than 300 square feet of floor area,the Inspector of Buildings shall cause to be published at the expense of the applicant In a newspaper of general circulation in the Town,under the heading,'Building Permits'the name of the applicant,the name of the street on which the property to which the permit relates is located or by which it is approached,the street number(or if no street number has been assigned,an approximation thereof made by the Inspector for this purpose only) and the nature of the work to be done." 14.Bylaws Section XXIII-Enforcement and Penalties-Part C further provides: "At least ten(10)days before Issuing any permit,except a permit for work on an existing building or structure or for a new structure of less than 300 square feet of floor area,the Inspector of Buildings shall at the expense of the applicant send notice [**7] by mall,postage prepaid,to the abutters and abutters to the abutters within 300 feet of the property line of the applicant,including owners of land directly opposite on any public or private street or way,as they appear on https://www.lexis.com/research/retrieve?cc=&pushme=1&tmpFBS el=all&totaldocs=&tag... 12/7/2009 ' Search- 100 Results - 30 day appeal period for building permits Page 3 of 6 • the most recent applicable tax list.Owners of land directly opposite the applicant on any public or private street or way, shall be considered abutters under this Section" [*19] 15.On February 28,2000.Mr.Eyges submitted his formal application for a building permit for a new single-family dwelling to be erected on Locus(Application).The Application Included a Proposed Construction Certified Plot Plan,dated February 4,2000, which depicted the setback from the easterly boundary of Locus(which abuts Plaintiffs Property)as 14.6 feet(Proposed Plot Plan). The first page of the Application Indicates that abutters and the Wellesley Townsman were notified of the Application on February 28, 2000.The names of the abutters who were notified appeared on the second page of the Application. Plaintiffs name appears on this list. Notice was required under Bylaws Sections XXIII(B)and(C), because the proposed construction Is well In excess of 300 [**B] square feet of floor area. 16.On March 9,2000,the Building Inspector granted Building Permit No.32276 to Mr.Eyges for the construction of a new single- family dwelling on Locus with an attached two-car garage(Building Permit).On March 14,2000,by an"As Built Certification Form and Plot Plan,"stamped by George N.Glunta,Registered Land Surveyor,the Eygeses confirmed that the location of the house conformed to the Building Permit.The easterly boundary setback is shown as 14.6 feet on both the February 4,2000 Proposed Plot Plan and the March 14,2000 As Built Plan. 17.Placement of the new house at Locus began Immediately atter the issuance of the Building Permit. 18.On March 27,2000,at Its Annual Town Meeting,the Town of Wellesley(Town)voted to a dopt Article 32,amending Bylaws Section XIX(Yard Regulations-Part B-Requirements).To clarify"the yard requirements by providing minimum setback requirements for certain lots,"Town Meeting adopted the following language instead of the language originally proposed: "Provided,however,in the 10,000 and 15,000 square foot Area Regulation Districts when a rear yard of a lot abuts the side yard of [**9] the next lot the minimum rear yard depth shall be not less than the minimum side yard depth." 19.As a result of the Article 32 Amendment to the Bylaws(Bylaws Amendment),the setback along the easterly boundary of Locus, where It abuts Plaintiffs Property,was Increased to twenty feet from ten feet. 20.Over a span of approximately one week In March 2000,two large,prefabricated sections of the Eygeses'new house were delivered to and erected on Locus. Consistent with the Proposed Plot Plan,the garage portion of the new dwelling is 14.6 feet from the easterly boundary line of Locus.In contrast to the house that had been previously sited on Locus which faced Manor Avenue,the newly constructed house faces Oakdale Avenue. 21.On July 17,2000,in accordance with S. I r 40A,4 7 and Bylaws Section XXIII-Enforcement and Penalties-Part F, Plaintiff requested In writing that the Building Inspector enforce the setback requirements of the Bylaws against Locus(Enforcement Request).At the time of Plaintiffs Enforcement Request,which was more than four months after the issuance of the Building Permit,construction and placement of the Eygeses'house on Locus t**101 was essentially complete. 22.On July 28,2000,the Building Inspector responded by letter to the Enforcement Request declining to enforce the Bylaws against Locus on the ground that he had'verbally authorized"the construction of the new house In late December 1999(First Building Inspector Letter). 23.By letter also dated July 28, 2000,the Building Inspector ordered the Eygeses to bring the new house into compliance with the Bylaws within 40 days(Second Building Inspector Letter).Enclosed with the Second Building Inspector Letter was a copy of the Enforcement Request and an acknowledgement that the Enforcement Request had"merit as a technical matter.'A copy of the . Second Building Inspector Letter was sent to Plaintiff. 24.On August 2,2000,Plaintiff wrote to the Building Inspector requesting that he clarify his contradictory letters of July 28,2000, and make a final determination with respect to her Enforcement Request. 25.Also on August 2,2000,Mr.Eyges flied with the Board: 1)an appeal of the Second Building Inspector Letter;and 2)a petition for a variance from the provisions of Bylaws Section XIX(Yard Regulations-Part B-Requirements)to (**11] allow the house"to remain with a minimum rear yard setback of 14.6 ft rather than the 20 ft required for the rear yard setback on a corner lot. .. , 26.By letter dated August 9,2000,addressed to the owners of Locus and copied to Plaintiff(Building Inspector's Enforcement Denial),the Building Inspector stated that the Second Building Inspector Letter,ordering compliance with the Bylaws,was sent In error.The Building Inspector again cited his late December 1999"verbal authorization"of the new construction. 27.In view of the Building Inspector's Enforcement Denial,on August 17, 2000,Eyges withdrew his August 2,2000 appeal and petition for a variance. 28.On August 21,2000,pursuant to S. I.r.40A. 4 8 and Bylaws Section XXIV(Permit Granting Authority-Part C-Appeals- Subpart 1),Plaintiff appealed the Building Inspector's Enforcement Denial(Plaintiffs Appeal).Pursuant to Bylaws Section XXIV: "(a)n appeal to the Permit Granting Authority... may be taken by any person aggrieved by reason of his Inability to obtain a permit or enforcement action from any administrative officer under this Zoning Bylaw and the Zoning Act (Chapter 40A, [**12] Mass.General Laws,as amended), by the regional planning agency in whose area the Town Is situated,or of an abutting city or town aggrieved by an order or decision of the Building Inspector,or other administrative official,in violation of any provision of this Zoning Bylaw or of the Zoning Act(Chapter 40A,Mass.General Laws, as amended)." . 29.In accordance with Bylaws Section XXIV(Permit Granting Authority-Part C-Appeals-Subpart 2),an appeal of a denial of enforcement by the Building Inspector must be brought: "[w]Ithin thirty(30)days from the date of the order or decision which Is being appealed,by filing a notice of appeal, specifying the grounds thereof,with the Town Clerk,who shall forthwith,within two business days,transmit copies thereof to such officer or board whose order or decision is being appealed,and to the Permit Granting Authority.Such https://www.lexis.com/research/retrieve?cc=&puslune=1&trnpFB Set=all&totaldocs=&tag... 12/7/2009 , Search- 100 Results- 30 day appeal period for building permits Page 4 of 6 officer or board shall forthwith, [*20] within seven(7)days, transmit to the Permit Granting Authority copies of all documents and papers constituting the record of the case In which the appeal is taken."• • 30.A public hearing on Plaintiff's Appeal to the Board was held September 28,2000,at(**13] which the Board voted unanimously to continue the session to the Public Hearing scheduled for October 26,2000,"in order to do further research on the issues." 31.At the continued session of the Public Hearing on October 26,2000,the Board voted unanimously to deny Plaintiff's Appeal. 32.On November 14,2000,the Board Issued,and flied with the Wellesley Town Clerk,Its Decision denying Plaintiff's Appeal. FOOTNOTES a G. L.c. 40A.6 15 Is parallel to Bylaws Section XXIV(Permit Granting Authority-Part C-Appeals-Subpart 2),In that It requires that an appeal from a decision or order of the Building Inspector be taken within thirty days of the Issuance of the decision or order. .. ...... ..... ... .. .. .. . .. . . *• * SrrtInn 8 of G.L. c.40A(The Zoning Act),allows for the direct appeal of the Issuance of a building permit.In particular,6 R provides: "[En appeal to the permit granting authority as the zoning ordinance or by-law may provide,may be taken. .. by any person. . .aggrieved by an order or decision (**14] of the inspector of buildings,or other administrative official,In violation of any provision of this chapter or any ordinance or by-law adopted thereunder." A building permit Is an"order or decision"of the building inspector for purposes of appeal under Section 8.See(flog Zonlnd Board of Appeals of Barnstable. 55 Mass.Aoo.Ct.424,427(20021;see also nerd Board of Appeal of Tewksbury, 348 Mass, 770. 771-223(19641(construing Issuance of building permit as an appealable decision or order under prior version of G.L.c. 40A). O. I.r.40A. 6 I requires that"[a]ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed."For a sertion 8 appeal of a building permit to be timely,therefore, it must be brought within thirty days from the date the building permit is issued.• FOOTNOTES a Under the scheme set forth in the Bylaws Section XXIII(Enforcement and Penalties-Part C), abutters are given at least ten days'notice of the pendency of a Building Permit Application, but not the issuance of the permit.This scheme gives abutters the opportunity to weigh in on the propriety of the permit and Imposes upon them the responsibility to check regularly at Town Hall to see whether and when it has Issued. (**15] Prior to the enactment of The Zoning Act,•the only remedy available to an abutting landowner under the predecessor zoning law was the direct appeal of a building inspector's decision or order.•See 1972 House Doc.No. 5009,at 55-56,Report of the Department of Community Affairs Relative to Proposed Changes and Additions to the Zoning Enabling Act. However,such relief alone was found to be insufficient.This is because, "[d]ecislons granting a permit may not,within the appeal period,come to the attention of persons who will be aggrieved by a violation of the zoning law.Construction under a permit may not be begun within the appeal period.• The permit,or even construction under It, may not disclose the violation.There is no requirement In the statute for notice to all persons possibly affected by an application for a permit." FOOTNOTES . . . . •Inserted by St. 1975,c.808, §3. s This relief remained essentially Intact as the Zoning Act was amended and appears In Its current form under G. L.c.40A.6 8. e"Any permit Issued shall be deemed abandoned and invalid unless work authorized by It shall have been commenced within six months after Its Issuance."780 Code Mass. Reis. 6 111.8(1998).In accordance with this provision of the State Building Code, any construction activity having the effect of putting abutters on notice likely may occur after the thirty day appeal period has lapsed. [**16] Brady v Board of Appeals of Westport. 348 Mass 515.520(1965)(Internal citations omitted)(emphasis added). Further, a"recipient of a permit could keep the permit under wraps for thirty days and then would have succeeded In foreclosing any challenge.'(itch v.Board of Appeals of Concord. 55 Mass.Aoo.Ct 748.751.(20071.Unless an appellant has actual notice of the issuance of a building permit and its contents,an appeal within thirty days under gfi 8,and iS Is improbable.In all likelihood,the appeal period will quietly pass and the right to directly challenge the issuance of the building permit will be lost.To compensate for this deficiency,mandamus was utilized as an'alternative remedy available to enforce the zoning regulations."flip. 55 Mass. Aoo at 478. n.6."If the enforcing officers[did]not act,a citizen,having no other remedy,(could]bring a mandamus petition naming the enforcing officers as respondents,"Brady. 348 Mass.at 519.Such a petition would"Invok[e]the general right of the citizen to • have his municipality enforce the applicable law."Id. https://www.lexis.com/research/retrieve?cc=&pushme=l&tmpFB Set=all&totaldocs=&tag... 12/7/2009 , Search- 100 Results -30 day appeal period for building permits Page 5 of 6 With[4'4'17] the enactment of The Zoning Act,the use of actions in the nature of mandamus to enforce zoning laws was superseded by the creation of a separate"enforcement action.""[T]he right to mandamus as a remedy for zoning violations committed under color of a building permit became a right to request the officer charged with enforcing local zoning to enforce the by-law under G.A. r.40A.Section 7."Vokes v. l oveil, 18 Mass. Apo.Ct 471.482(1984).S;. I,r.40A. 6 7 permits the delegation to a town's building Inspector of the duty to enforce the zoning bylaws.It also sets out the limits on such an enforcement action.In particular,§ ' Z provides that If: "[r]eal property has been improved and used in accordance with the terms of the original building permit. .-no action "- criminal or civil,the effect or purpose of which Is to compel the abandonment,limitation or modification of the use allowed by said permit or the removal,alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter,or of any ordinance or by-law adopted thereunder,shall be maintained,unless(4'4'15] such action,suit or proceeding is commenced... within six years next after the commencement of the alleged violation of law." The enforcement action"provides an alternative means'to stop allegedly unlawful Construction'.. . ."Fitch. 55 Mass.ADD.Ct at 751 citing yokes. 18 Mass.App.Ct. at 483.G. L c.40A. 6 7"establishes a six-year limitations period for actions seeking to remedy zoning violations arising out of alleged unlawful activities [4'21] conducted pursuant to an'original building permit.'"liakes,1.8 Mass.App.at 475.A refusal to enforce the bylaws can be appealed to the permit granting authority"by any person aggrieved by reason of his Inability to obtain a[n]. . .enforcement action.'G. L.r.40A, 6 8.As with an appeal from the issuance of a building permit,such appeal must be taken within thirty days. G. L.c.40A. 6 15.7 FOOTNOTES.. _. _. .. 7 I the case of an enforcement action,the date of the building Inspector's written refusal is the operative date for determining the timeliness of an appeal. (t4'19] At first blush,Plaintiff appears to have had two courses of action under The Zoning Act and applicable Bylaws: 1)a direct appeal of the Issuance of the building permit to Eyges under G. L,c.40k §8 and Bylaws Section XXIV(Permit Granting Authority-Part C-Appeals-Subpart 1)r;and 2)an enforcement action requesting the building Inspector to enforce the Bylaws against Locus under G. L r.40A.fi 7,and Bylaws Section XXIII(Enforcement and Penalties-Part F). Plaintiff chose to pursue the latter course when she wrote to the Building Inspector,on July 17, 2000,requesting that he enforce the setback requirement of the Bylaws against Locus.However,under the unusual facts of the instant action,this court Is persuaded that Plaintiff Is precluded from bringing such an action even where her Enforcement Request was within the six-year statute of limitations contained In§1 of The Zoning Act. FOOTNOTES s The language of Bylaws Section XXIV,Part,Subpart 1,does not exa ctiy mirror Section 8 of the Zoning Act beca use it Is missing mention of"any person Including an officer or board of the city or town"when listing those people who have a right of appeal of an order or decision of the Building Inspector.This court views the omission as unintentional,as the omitted clause must be Included In order to make sense of the section in its entirety. [4'4'20] As part of her summary Judgment materials, Plaintiff provided a copy of the Application,and accompanying plot plans.On the face of the Application is a list of abutters,including Plaintiff,who received notice of the Application on February 28,2000.The Proposed Plot Plan revealed on Its face that the setback of the garage Is only 14.6 feet(instead of 20)from the boundary line Plaintiff's Property shares with Locus.Plaintiff does not dispute that she received notice of the Application clearly depicting the zoning violation at the time of Its filing with the Building Inspector.Therefore,this court may properly draw the inference In favor of the nonmoving party, here Defendants,that Plaintiff,as an abutter to Locus, received notice in accordance with the notice scheme set forth in Bylaws Section XXIII, Parts B and C. Despite notice of an insufficient setback, clear on both the Application and the Proposed Plot Plan accompanying It,Plaintiff failed to take a direct appeal of the issuance of the building permit within thirty days of March 9, 2000,as required by G.L c.40A.44 8 and j5.Rather,Plaintiff sought enforcement of the Bylaws against Locus more than four[4'4'21] months after the Building Permit in question was Issued and the home was essentially complete and In place. Plaintiffs enforcement request alleged that: "[t]he structure located at[Locus]is In violation of the Bylaw In that It does not meet the minimum setback of 20 feet. Specifically,the garage portion of the structure Is only 14.6 feet from the easterly lot line(I.e.,the line opposite Oakdale Avenue as shown on the Plot Plan prepared by George N.Giunta, R.L.S.,dated March 14,2000-copy enclosed)." In anticipation of the argument that enforcement should have been requested earlier than It actually was,Plaintiff claimed in her Enforcement Request that"the Permit is not sufficiently descriptive to determine if the proposed structure would or would not be In conformity with the Bylaw."However,the same setback violation that was alleged in Plaintiffs Enforcement Request was readily apparent from the Proposed Piot Plan submitted with the Application,and from the As Built Plan that was filed with the Building Department on March 14,2000,less than a week after the Building Permit Issued. Had Plaintiff not received notice of the Application [4'4'221 depicting the zoning violation following Its filing by the Eygeses, her Enforcement Request likely would have been proper. However,the enforcement action procedures delineated in The Zoning Act are designed to remedy those Instances In which an aggrieved party does not have notice of the contents of an application for or the Improper issuance of a building permit.This is precisely why"the Legislature adopted the enforcement procedure that appears In G. I.r.40A. §7."Fitch, 55 Mass.Apo.Ct.at 751.Plaintiff had notice of the precise alleged zoning violation of which she later complained when she received notice of the Application and she had the opportunity to act at that time,before Defendants proceeded with their plans.Therefore, Plaintiff's position is not supported or informed by the several cases in which the Court upholds the availability of two courses of action for challenging alleged zoning violations under The Zoning Act. haps://www.lexis.com/research/retrieve7cc=&pushme=1&tmpFBSel=all&totaldocs=&tag... 12/7/2009 Search- 100 Results- 30 day appeal period for building permits Page 6 of 6 • In fact,Plaintiff's case Is in direct contrast with the circumstances In Vokes v.Lovell,where the Court observed"that the request for enforcement procedure was independent of the right to take an appeal under G. [••23] L. c.40A,La within thirty days of the Issuance of a permit. ..because there is no public notice of the issuance of a building permit."Fitch. 55 Mass. ADD.Ct.at 751.In Brady v.Board of Appeals of Westport, the Court held that"[t]he loss by an aggrieved citizen of the right of direct attack on a permit does not entail loss of the right of the same citizen to bring a mandamus petition for enforcement of the law and to stop violations in construction going forward under the permit."348 Mass.at 520-521.The reasoning of the Brady Court was also grounded on the assumption that the aggrieved party had no prior notice of an alleged zoning violation. Similarly, in Elio v.Zoning Board of Appeals of Barnstable,the Appeals Court held that "[i]n addition to the foregoing right of direct appeal from a building permit or other order of an officer charged with enforcement of a zoning ordinance,the statute provides that,Irrespective of the existence of any such permit or order,a person may make a written request to the officer to enforce the zoning ordinance and then, if that request Is denied in writing, may appeal [4424] the denial to the board within the time prescribed by s. 15." [p22] As in the aforementioned cases,the Ello Court,in reasoning through the Issue,relied on the fact that the aggrieved plaintiff had no notice of a defective building permit,and was,therefore, not in a position to appeal Its Issuance in a timely manner.filo. 55 Ma4c.ADo.Ct at 427.While The Zoning Act does not require that abutters receive notice of pending building permit applications or their issuance,the Town of Wellesley has chosen,through its Bylaws,to provide for such notices to statutory abutters.Such notice was given to Plaintiff,both by publication and by mail. Plaintiff had ten days in which to raise the Issue of an insufficient setback adjacent to her Property,but did not do so.The circumstances in this case are also unusual because the fact that the Eygeses were . constructing a modular house on Locus meant that there was very little time needed for completion of construction.Thus,the house arrived at Locus and was substantially complete In a very short period of time.It may be that had Plaintiff timely challenged the building permit,the house could have been [••25] modified so as to comply with the setback requirements. It follows that Plaintiff Is In a narrow category of people who are required to bring forth their challenge when they have actual notice that there is a zoning violation.Plaintiff's position differs from that of the appellants in yokes,Brady, and Ello, in that she received notice of the Application for a building permit and that notice clearly revealed the defect that Plaintiff challenged through her Enforcement Request four months later.Plaintiff's behavior and the facts of this case place her outside of the class of people whom the Legislature sought to protect by establishing an enforcement action. Because she received notice of the Application when It was filed,had the ability to vet the Building Permit when it was subsequently Issued,and the opportunity to view the As Built Plan when it was filed in the Building Department,Plaintiff's vulnerability as an abutter unaware of a neighbor's planned construction was eliminated.Plaintiff's Enforcement Request was,in fact,a late challenge to the issuance of the Building Permit to Eyges.It alleged nothing more than the setback deficiency of 5.4 feet on the easterly [••26] boundary of Locus.The challenge should have and could have been brought within thirty days of the issuance of the Building Permit. While there are no material facts In dispute,the record esta Wishes that Defendants,not Plaintiff,are entitled to judgment as a matter of law.See Mass. R.Civ. P. 56(cl.Accordingly,this court denies Plaintiff's motion and grants summary judgment In favor of Defendants on the Issue of Plaintiff's failure to timely appeal the issuance of the Building Permit as required by The Zoning Act and Bylaws Section XXIV.This Court finds and rules that,where Plaintiff had notice of the application for a Building Permit depicting the alleged zoning violation,and failed to exhaust her administrative remedies by appealing the Building Permit within thirty days of Its issuance,an enforcement request based on the same alleged zoning violation,brought as an enforcement action pursuant to G. L.c. 40A.y 7 was unavailable to her as a remedy.Therefore, Plaintiff's Appeal under G. L c.40A. 6 8,and the subsequent appeal to this court under G. L.c.40A. 4 17 shall be dismissed. Judgment will enter accordingly. Source: Combined Source Set 7 j]-MA Stab Cases,Combined Terms: 30 day appeal period for building permits (E9l15earch I Suocesl Terms for My Search l Feedback on Your SsEg0) View: Full Dateflme: Monday,December 7,2009-5:20 PM EST My Lexis"I Search I Research Tasks I Get a Dlacument I,$hgpard''®I Ain I Total Litigator I IransaCtiOn LMvisor I S91d054t3elector History I Delivery Manager I Omani Switch Client I Prereroerna I Bing I Iden tar LexisNOXise s �ovriohti0 20091ezrls a®sge dlivison or Ree Eltsevier Inc.All rights reserved. • - https://www.lexis.com/research/retrieve?cc=&pushme=l&tmpFBSel=all&totaldocs=&tag... 12/7/2009 011'444p0 TOWN OF YARMOUTH �.. C 4' OFFICE OF THE TOWN CLERK • I — �� it 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 ICHIE•rg TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC February 23, 2010 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Department Docket No. 10 MISC 422617 William Marasco Plaintiff VS Members of Yarmouth Zoning Board of Appeals, received February 12, 2010, with a follow up.. Please feel free to contact me if you have any questions or need any more information. Respectfully yours, JEH:jeh Jane E. Hibbert, CMC/CMMC Encs Town Clerk Cc: Robert C. Lawton, Jr. Town of Yarmouth Board of Appeals James Brandolini,tN File • aeo � tced jce. Jay 2Ste ee eeDD fine.e4�l�w.JJavtadei`.$ OPOis Tel 383-0600 Fax(781)383-2734 cjldaw@comcast.net JJ J I-1 CERTIFIED MAIL RETURN RECEIPT REQUESTED C.) NO. 7003 1010 0005 2780 9582 - February 22, 2010 v, Town Clerk Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: William Marasco v. Steven DeYoung,Member of the Town of Yarmouth Zoning Board of Appeals et al Land Court Case No: 10 MISC 422617 Dear Sir/Madam: In accordance with General Laws Chapter 40A, Section 17, notice is hereby given of a Complaint filed with the Land Court on February 12,2010 relative to the above referenced matter. Enclosed is a copy of the Complaint. Very truly yours, Ck \ nmfu4p Pik Charles J. Humphreys, Esquire CJH:epm Enclosures , • COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. LAND COURT DEPARTMENT DOCKET N0. i/O IPA iSGtraaio(rI ) WILLIAM MARASCO, ) _TJ Plaintiff ) t • _0 V. ) kJ • Q STEVEN DeYOUNG,SEAN IGOE, ) COMPLAINT I = f Z JOSEPH SARNOSKY,DAVID REID, ) �.—, DEBRA MARTIN and BRYANT ) PALMER,as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A,Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth,Barnstable County, Massachusetts,denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner. PARTIES 1. The Plaintiff, William Marasco,is an individual with an address of 143 River Street, South Yarmouth, Massachusetts 02664 (hereinafter referred to as"Marasco"). .l 2. The Defendants, Steven DeYoung, 691 Willow Street, South Yarmouth, Massachusetts 02664; Sean Igoe, 223 South Sea Avenue, West Yarmouth,Massachusetts 02673; Joseph Samosky, 111 Merchant Avenue, Yarmouth Port, Massachusetts 02675; David Reid, 1292 Route 28,South Yarmouth,Massachusetts 02664; Debra Martin, P.O. Box 320, South Yarmouth,Massachusetts 02664; and Bryant Palmer, 66 Traders Lane, West Yarmouth,Massachusetts 02673,who are not named individually but are named as Members of the Yarmouth Zoning Board of Appeals(hereinafter collectively referred to as the"Board"). 3. The Defendant, the Town of Yarmouth,is a municipal corporation,with a place of business at Yarmouth Town Hall, 1146 Route 28, South Yarmouth,Massachusetts 02664(hereinafter referred to as the"Town"). STATEMENT OF FACTS 1. The Plaintiff,Marasco,is the owner of a two-family residence located at 143 River Street, South Yarmouth,Barnstable County, Massachusetts 02664. Said parcel contains 21,780 sq.ft.of land and is located in an RS 40 Zoning District. 2. Marasco purchased the property on November 29, 2001 from the Coughlin Family Trust,Richard Bussiere,Trustee. At the time of purchase the property consisted of a dwelling house with an attached garage apartment. Further, at the time of purchase the house and garage apartment were fully furnished. In 2001 and every year thereafter to the present,Marasco has applied for and received a rental permit and has rented and continues to rent the apartment to third parties. • �t7 —1 2 o '. , r) - ' , O 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005,Marasco contacted James D. Brandolini, Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3,2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney,opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot plea for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexisting nonconforming use. 7. In March 2006,the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s. -l� _1 i l i 3 1 ..' kJ: • 8. After receiving correspondence from Richard Bussiere,Trustee of the Coughlin Family Trust, with regard to use and after receiving an opinion from Town Counsel dated March 6,2006,which stated in part: "Taking that letter(from Richard Bussiere)at face value as fact then it appears that the use of the unit was not discontinued;that Section 104.3.1 of the Zoning Bylaw is not applicable;and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 9. Thereafter,Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination, the Building Commissioner issued three permits: a)March 21, 2006—to allow demolition of the garage apartment;b. March 31,2006—to allow construction of foundation; and c. April 19,2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy ' --1 1 > was issued on December 19,2006. ; `p 1./ 4 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A, Section 15. 14. Thereafter from 2006 to 2008, an abutter,Richard Shea,communicated with Richard Bussiere and received a series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. 15. The abutter,Mr. Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16,2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William • Marasco "to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or"file a variance petition with the Zoning Board of Appeals!' 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11,2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals • pursuant to the provisions of M.G.L. Chapter 40A, Section 15 within thirty(30)days,and further, indicated that the failure to take action within thirty(30)days will result in appropriate zoning enforcement action which may include the issuance of tickets with fines of up to $300.00 per day. A copy of the August 11,2009 letter is attached hereto • and marked Exhibit A. f i ) . 1 .Z - 'JI IF N 5 _ 18. Marasco appealed the Order and the matter was heard by the Zoning Board of•. Appeals at a Public Hearing on December 10,2009 and a continued Public Hearing on January 28,2010. At the January 28, 2010 Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2, 2010. A certified copy of said Decision is attached hereto and marked Exhibit B. 19. The Building Commissioner's letter dated August 11,2009 and letter dated July • 16, 2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter,Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L. Chapter 40A, Section 15 provides that: "Any appeal under Section 8 to a permit granting authority shall be taken within thirty(30)days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke,or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2,2009 is illegal, arbitrary, capricious, contrary to law and not based on substantial facts. Said Decision 13,1 an abuse of discretion and is in excess of the Board's authority. ��,'� v 6 WHEREFORE,the Plaintiff, William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiffs Appeal is in excess of their authority, in violation of law, arbitrary, capricious, is an abuse of discretion,is not based on substantial facts and plainly wrong. 2. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated July 16,2009 and August 11,2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, C . umphreys, Esquire 15 Brook Street Cohasset,MA 02025 (781)383-0600 BBO No.:244200 Dated: February 11,2010 . � • w — • ! -i 7 •7 o ' R TO WN OF YARMOUTH 3=' o BUILDING DEPARTMENT G - H Fri • 1146 Route 28,South Yarmouth,MA 02664 it 1! t‘A r1/ �� 508-398-2231 ext. 261 Fax 508-398-0836 �` 1r August 11, 2009 Dr. William Marasco 143 River Street South Yarmouth,MA 02664 Re: 143 River Street Dear Dr.Marasco: This Is to serve as a follow-up to my July 16,2009 letter, our subsequent phone conversation, and your August 10,2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10,2009 letter addresses neither. Based on this;you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals,pursuant to the provisions of MGL Chapter 40A, Section 15.within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action, which may include the issuance of tickets with fines of up to$300 per day. So Ordered, Ct^‘� Ja�Brandolini, C.B.O. Building Commissioner .:_O ---i ficc: Zoning Board of Appeals • - ' 4J N • QLT • • T44". 4•66- is�g TOWN OF YARMOUTH y BOARD OF APPEALS y. DECISION .0 s —1 M} EXHIBIT l J43 '' O FILED WITH TOWN CLERK: February 2,2010 1. 1 37 PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco i .• .i..l • 7 PROPERTY: 143 River Street, South Yarmouth I" w , •-_ Map& Parcel: 0034.282 Zoning District: RS40 - r.. Book& Page: 22686/215 !I •"-1 t) —"C MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph '�` Sarnosky,David Reid,Debra Martin and Bryant Palmer,Alternate. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register,the hearing opened and held on the date stated above. The Petitioner, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street,South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that, in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him dated 07/16/09 and the follow-up correspondence of the Building Commissioner,Mr. James Brandolini, dated 08/11/09. The Petitioner sought relief front the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that them was no interruption/lapse beyond two(2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. • 1 • ' The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the course of two appearances, Counsel for the applicant and Special Town Counsel each provided • the Board with well thought-out and often persuasive argument on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought, this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two (2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Samosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Steven Do!'Y ung-Chairr& F 1 ; D l N ti w (� v7 N 2 Page 1 oft irk, Clark, Sandi From: William Marasco[wmarasco@massmed.org] Sent: Friday,April 30, 2010 2:18 PM To: Clark, Sandi Subject: Re: Boa meetings Hi Yes that is right the last 2 .. Thank you Sent from my iPhone On Apr 30,2010,at 1:51 PM, "Clark, Sandi" <SCIark@yarmouth.ma ns>wrote: Hi Mr. Marasco, In order to expedite this request, I believe the meeting dates were December 10, 2009&January 28, 2010. On October 22nd the legal ad was read into the minutes and a request was made to continue to December 10th for more time to prepare for the appeal. If I am correct that you are looking for 12/10/09 &01/28/10 please reply and I will let Shawn know. Thank you, Sandi From: Madnnes, Shawn Sent: Friday, April 30, 2010 12:59 PM To: Clark, Sandi Subject: RE: Boa meetings Sandi, Can you ask Bill what the dates were? Thanks. Shawn Maclnnes Information Technology Director Town of Yarmouth (508)398-2231 x1297 From: Clark, Sandi Sent: Friday, April 30, 2010 11:10 AM To: Madnnes, Shawn Cc: Hevener, Joseph Subject: FW: Boa meetings From: marasco william [mailto:wmarasco@massmed.org] 4/30/2010 Page 2 of 2 ‘ r ` ' Sent: Friday, April 30, 2010 10:04 AM To: Clark, Sandi Subject: Boa meetings Hi could you please send me a copy of the BOA(disk of televised meetiong)for both of my hearings. Thank You Bill Marasco 143 River st S.Yarmouth, MA 4/30/2010 Page 1 of 1 �r^ • Clark, Sandi From: William Marasco[wmarasco©massmed.org] Sent: Friday,April 30,2010 3:44 PM To: Clark, Sandi Subject: Re: disk Hi I will come ny next week and pick it up Thank you Bill Sent from my iPhone On Apr 30, 2010, at 3:39 PM, "Clark, Sandi" <SClarkca yarmouth.ma.us>wrote: Hi mr. Marasco, I have just received the disk from Shawn. The cost is$30.00 and I will be in the office till 4:30 today and returning on Monday at 8:30 am. Sandi 4/30/2010 .014.Y44-74 TOWN OF YARMOUTH ri- Al C OFFICE OF THE TOWN CLERK IL 1146 ROUTE 28, SOUTH YARMOUTH, MA 02664 1 E,v4Ep TELEPHONE (508) 398-2231 FAX (508) 760-4842 Jane E. Hibbert, CMC/CMMC February 16, 2010 Bruce Gilmore, Esq. 99 Willow Street Yarmouth Port, MA 02675 Dear Mr. Gilmore: Enclosed please find copies of a Land Court Appeal William Marasco Plaintiff VS Members of Yarmouth Zoning Board of Appeals, received February 12, 2010. Please feel free to contact me if you have any questions or need any more information. Respectfully yours, QGkrtP JEH:jeh Jane E. 1-Tibbert, CMC/CMMC Encs Town Clerk Cc: Robert C. Lawton, Jr. Town of Yarmouth Board of Appeals James Brandolini File Qyahe seed, ace come", `6,4a,iWizzuachaens, aeon 7217781)383-0600 fax(781)383-2734 cjflaw@comcast.net 11J .J M PD r. . N j VIA FEDERAL EXPRESS DELIVERY r2 --IFebruary 11,2010 l_.) Zoning Board of Appeals Town of Yarmouth Town Hall 1146 Route 28 South Yarmouth,MA 02664 Re: William Marasco v. Steven DeYoung, Sean Igoe,Joseph Samoskv,David Reid, Debra Martin and Bryant Palmer,as they are Members of the Yarmouth Zoning Board of Appeals, and the Town of Yarmouth Dear Sir/Madam: Enclosed you will find the following documents relative to the above matter: 1. Notice of Appeal; and 2. Complaint filed with Land Court. Please note that this matter was filed with your office on the date you receive this letter. Very truly yours, • Charles J. Humphreys, Esquire CJH:epm Enclosures A TOWN OF YARMOUTH ZONING BOARD OF APPEALS __ l 1 T 2b RE: William Marasco n w 143 River Street N 0 South Yarmouth '..; Petition No. 4268 t "`I CI v+ T w NOTICE OF APPEAL OF A DECISION OF THE ZONING BOARD OF APPEALS DATED FEBRUARY 2,2010 May this serve as formal Notice of the Appeal of William Marasco to the Trial Court of Massachusetts, Land Court Division, of the Decision of the Yarmouth Zoning Board of Appeals regarding the above-captioned matter, attached hereto and incorporated herein is the Complaint filed with the Land Court Division. Respectfully submitted, WILLIAM MARASCO By his attorney, Char[es . uiiphreys, Esquire 15 Brook Street Cohasset, MA 02025 (781)383-0600 BBO NO.: 244200 Dated: February 11, 2010 It • COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. LAND COURT DEPARTMENT DOCKET NO. - -4a DO 3 0 —G ) m WILLIAM MARASCO, ) a , Plaintiff ) IT N C7 ) f1 = t7 L v. ) STEVEN DeYOUNG, SEAN IGOE, ) COMPLAINT JOSEPH SARNOSKY,DAVID REID, ) DEBRA MARTIN and BRYANT ) PALMER, as they are Members of the ) Town of Yarmouth Zoning Board of ) Appeals,and the TOWN OF ) YARMOUTH, ) ) Defendants ) ) STATEMENT OF THE CASE This is an Appeal under General Laws,Chapter 40A, Section 17 of a Decision of the Zoning Board of Appeals of the Town of Yarmouth,Barnstable County, Massachusetts, denying the Plaintiff's Appeal to vacate an Order of the Building Commissioner. PARTIES 1. The Plaintiff, William Marasco,is an individual with an address of 143 River Street, South Yarmouth, Massachusetts 02664 (hereinafter referred to as"Marasco"). It R 2. The Defendants, Steven DeYoung,691 Willow Street, South Yarmouth, Massachusetts 02664; Sean Igoe,223 South Sea Avenue, West Yarmouth, Massachusetts 02673;Joseph Samosky, 111 Merchant Avenue, Yarmouth Port,Massachusetts 02675; David Reid, 1292 Route 28, South Yarmouth,Massachusetts 02664; Debra Martin, P.O. Box 320, South Yarmouth, Massachusetts 02664; and Bryant Palmer, 66 Traders Lane, West Yarmouth,Massachusetts 02673,who are not named individually but are named as Members of the Yarmouth Zoning Board of Appeals(hereinafter collectively referred to as the"Board"). 3. The Defendant,the Town of Yarmouth, is a municipal corporation, with a place of business at Yarmouth Town Hall, 1146 Route 28, South Yarmouth, Massachusetts 02664 (hereinafter referred to as the"Town"). STATEMENT OF FACTS 1. The Plaintiff,Marasco, is the owner of a two-family residence located at 143 River Street, South Yarmouth,Barnstable County, Massachusetts 02664. Said parcel contains 21,780 sq. ft. of land and is located in an RS 40 Zoning District. 2. Marasco purchased the property on November 29, 2001 from the Coughlin Family Trust,Richard Bussiere, Trustee. At the time of purchase the property consisted of a dwelling house with an attached garage apartment. Further, at the time of purchase the house and garage apartment were fully furnished. In 2001 and every year thereafter to the present, Marasco has applied for and received a rental permit and has rented and continues to rent the apartment to third parties. ; 1) _L 2 �% to -X 3. The premises have a history of rental permits for the garage apartment dating back to the late 1960s and are assessed by the Town of Yarmouth as a two-family house with garage apartment. 4. In October 2005, Marasco contacted James D. Brandolini, Building Commissioner of the Town of Yarmouth,regarding the demolition and rebuilding of the garage apartment and was informally advised that a special permit would be required from the Zoning Board of Appeals because the Building Commissioner considered that the garage apartment,which was attached to the main house by a breezeway,to be a separate building. 5. On or about February 3, 2006,the Building Commissioner requested an opinion of Town Counsel as to whether or not the existing structure was a two-family dwelling or two separate family dwellings. The then Town Counsel,John Creney, opined that the structure was a single two-family dwelling. 6. Two-family dwellings are allowed in the RS 40 Zoning District but in 1971 the Town amended the Zoning Bylaw to require that two-family houses are permitted as a matter of right on lots which are not less than 150%of the minimum requirement lot area for the district. The premises are less than the required 150%minimum lot area and thus constitute a lawful preexisting nonconforming use. 7. In March 2006,the Building Commissioner raised the question as to whether the nonconforming use had been abandoned by the previous owners in the late 1990s.DJ 7 Fri ;_74 ` - V1 3 I 8. After receiving correspondence front Richard Bussiere,Trustee of the Coughlin Family Trust, with regard to use and after receiving an opinion from Town Counsel dated March 6,2006, which stated in part: "Taking that letter(from Richard Bussiere)at face value as fact then it appears that the use of the unit was not discontinued; that Section 104.3.1 of the Zoning Bylaw is not applicable; and that the preexisting nonconforming use as a duplex may lawfully continue without any necessary relief from the Zoning Board of Appeals." 9. Thereafter, Marasco filed an application to demolish the existing garage apartment and construct a new one in its place. The application and plans fully disclosed the details of the work to be done and the addition's intended use as a garage apartment. The proposed structure complied with all setback and coverage requirements of the Zoning Bylaw. 10. Marasco also applied for and received a Board of Health Permit to repair and reconstruct the septic system for the apartment. 11. After such investigation and determination,the Building Commissioner issued three permits: a)March 21,2006—to allow demolition of the garage apartment;b. March 31,2006—to allow construction of foundation; and c.April 19,2006—to allow construction of the garage and apartment. 12. The construction commenced upon issuance of the building permits. All work was performed in accordance with the plans and permits and a Certificate of Occupancy was issued on December 19,2006. Fri t-T l —1 ( 7 N L 4 �. . ,: —f r_ - 0 • • 13. No appeal was taken by any person to the Zoning Board of Appeals under G.L. Chapter 40A, Section 15. 14. Thereafter from 2006 to 2008,an abutter, Richard Shea,communicated with Richard Bussiere and received a series of letters which purportedly raised questions in the abutter's mind as to whether the nonconforming use had been discontinued. 15. The abutter, Mr. Shea,persuaded the Building Commissioner to reopen the question of abandonment or discontinuance of use. On July 16,2009,over three(3) years after the issuance of building permits,the Building Commissioner ordered William Marasco"to provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use"or"file a variance petition with the Zoning Board of Appeals." 16. Marasco was not able to obtain additional information from the beneficiaries of the Coughlin Family Trust due to the fact that all beneficiaries were deceased by 2002. 17. The letter dated August 11,2009 from the Building Commissioner to William Marasco notified him of his right to appeal this Order to the Zoning Board of Appeals pursuant to the provisions of M.G.L. Chapter 40A, Section 15 within thirty(30)days,and further, indicated that the failure to take action within thirty(30)days will result in appropriate zoning enforcement action which may include the issuance of tickets with fines of up to$300.00 per day. A copy of the August 11,2009 letter is attached hereto and marked Exhibit A. l r N 5 ;.i. , _—I >N-4.2 n • I . • 18. Marasco appealed the Order and the matter was heard by the Zoning Board of Appeals at a Public Hearing on December 10,2009 and a continued Public Hearing on January 28,2010. At the January 28, 2010 Public Hearing,Marasco's Appeal was denied by a 3-2 vote and the Board's Decision was filed on February 2,2010. A certified copy of said Decision is attached hereto and marked Exhibit B. 19. The Building Commissioner's letter dated August 11,2009 and letter dated July 16,2009 are illegal and in excess of the Building Commissioner's authority. 20. Neither the abutter, Mr. Shea,nor any other person took any appeal with respect to the building permits issued to Marasco. 21. G.L. Chapter 40A, Section 15 provides that: "Any appeal under Section 8 to a permit granting authority shall be taken within thirty(30)days from the date of the order or decision which is being appealed..." 22. The Building Commissioner cannot reconsider a Decision once issued. 23. The actions of the Building Commissioner constitute a Re-decision of an earlier Decision and are not within the power of the Building Commissioner. 24. The Building Commissioner's actions in the present case constitute an attempt to reconsider,revoke, or appeal a previously granted building permit and are contrary to law and public policy. 25. The Decision of the Zoning Board of Appeals dated February 2, 2009 is illegal, arbitrary,capricious, contrary to law and not based on substantial facts. Said Decision is an abuse of discretion and is in excess of the Board's authority. =; C i0 6 ; . = .r_ WHEREFORE,the Plaintiff,William Marasco,requests this Honorable Court to: 1. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals in denying the Plaintiff's Appeal is in excess of their authority, in violation of law, arbitrary,capricious, is an abuse of discretion, is not based on substantial facts and plainly wrong. 2. Enter a judgment that the Decision of the Yarmouth Zoning Board of Appeals dated February 2,2009 be annulled. 3. That the Yarmouth Zoning Board of Appeals be ordered and directed to vacate and rescind the letters of the Building Commissioner to William Marasco dated July 16, 2009 and August 11, 2009. 4. Enter a judgment for such other relief as the Court deem just and reasonable under the circumstances. Respectfully submitted, WILLIAM MARASCO By his attorney, C • , umphr�Esquire 15 Brook Street Cohasset,MA 02025 (781) 383-0600 BBO No.: 244200 Dated: February 11,2010 ' —1 0 –G 0 ;;3 l_i V1 V. 7 /•, o_. •Y4R", TOWN OF YARMOUTH 3; ':�Q C BUILDING DEPARTMENT o ,R•i y 1146 Route 28,South Yarmouth,MA 02664 F" r % �� . �4' 508-398-2231 ext.261 Fax 508-398-0836 EXHIBIT 1:,.,.,.,,,xr.ccn ,. August 11,2009 Dr. William Marasco 143 River Street South Yarmouth,MA 02664 Re: 143 River Street Dear Dr. Marasco: This is to serve as a follow-up to my July 16,2009 letter,our subsequent phone conversation, and your August 10, 2009 letter concerning the garage apartment use status. As stated in my July 16, 2009 letter and reiterated in our phone conversation, Attorney Murphy's legal opinion is clear. As a result of this legal opinion you were"ordered to provide sufficient documentation that them was no interruption/lapse beyond two(2)years in the apartment use"or "file a variance petition with the Zoning Board of Appeals". Your August 10, 2009 letter addresses neither. Based on this,you are again ordered to take the action stated. You also have the right to appeal this order to the Zoning Board of Appeals, pursuant to the provisions of MGL Chapter 40A,Section 15, within thirty(30)days. Finally, failure to take any action within thirty days will result in appropriate zoning enforcement action, which may include the issuance of tickets with fines of up to$300 per day. So Ordered, JaBrandolini, C.B.O. X . Building Commissioner cc: Zoning Board of Appeals i l ;.;; ?A N - --:-1/4;. : C� a ' ---i Ln :I; v, • ,rte ;'�"3' TOWN OF YARMOUTH • •' i� �i C BOARD OF APPEALS DECISION ^ EXHIBIT ' .i nL FILED WITH TOWN CLERK: February 2,2010 V) iC o. PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco PROPERTY: 143 River Street, South Yarmouth Map&Parcel: 0034.282 Zoning District: RS40 Book& Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky,David Reid,Debra Martin and Bryant Palmer,Alternate. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register,the hearing opened and held on the date stated above. The Petitioner, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street, South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that,in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him dated 07/16/09 and the follow-up correspondenceof the Building Commissioner,Mr. James Brandolini,dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two(2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. DJ 1 i �0 ' "' ' .I7 -, - =� f • Y'1AR�;,,C,.,TH $eg b a u 'ppa a big p ap V C U O y m� 0g0 G O 1 4 . E‘Air i s \ to �ydw u• ~ ; en u Au u of▪ v ac Q ' r a\ � Ix C O u Fii lie. of O N .f"'.'� G' €... o N c O -o of C q C C .f.,! a 4-:: ti .0 °0 'O WO 8 2-0 8.s. c O - IN � 11111!8gc, 00ao � 8. aa u « oo2w4 to o °c , > usao q$ v c ' pso *.o 2 oo $ g at Q - o. • O u >UgV32q Is O al N t Ujflj 0O O uc V.0 . ca •pO3 Ol4fte 0 i twfl '� « u a tab a E u u u op {� al O a! V O '° bo c vQ 'oaboqE T. . St..a- ' ° > . >,p •8 a > eu . tas_ 4. u0, u >, q :: off ow ;nf 0241 0 041 {/mss cm$ g v .arcb - eo C0 vas a u .� uq � q � °° I5• — u c _�'• ub � ka0 �+' q 00 ° 1311.• .cW � tole; 1 ° u o 3 a b w m a :. 4 Ca u 6, p, 0 u q « ,� �+ N o cgs tiQ v ° 'a E 0= o 5. 0 a a. t 0 . . a,CO m Q c Q9. ofta& a'ad 75O dea oto as Tel-(781)383-0600 Yiax(781)383-2734 cjklaw@comcast.net (ii 7r, (-� ry , C) l_ VIA FEDERAL EXPRESS DELIVERY t1 _ i111.1 February 11,2010 Clerk's Office Land Court 226 Causeway Street Boston, MA 02114 Re: William Marasco v. Steven DeYoung, Sean Igoe,Joseph Sarnosky.David Reid, Debra Martin and Bryant Palmer,as they are Members of the Yarmouth Zoning Board of Appeals,and the Town of Yarmouth Dear Sir/Madam: Enclosed for filing you will fmd the following documents relative to the above referenced case: 1. Civil Cover Sheet; 2. Complaint;and 3. Filing Fee in the amount of$255.00. Thank you for your cooperation in this matter. Very truly yours, CACALOA VaimpluthistiorL Charles J. Hum he CJH:epm Enclosures cc: William Marasco / Town of Yarmouth,Board of Appeals(Via Federal Express Delivery) (/ TOWN OF YARMOUTH BOARD OF APPEALS HEARING NOTES Petition# Lit loW Petitioner: 411\ArMrc7 Hearing Date: f lay II0 co AAA t40-0-k-46") REQUEST: SPECIAL PERMIT: § VARIANCE: § Overturn B.I. Members of the Board present and voting. catrr»nt �� 04 c Mc> c ) �* a c*4�t V.—`w� r It appearing th n iced said hearing has seen given by sen in riiotice thereof to tife petitioner and all those owners of property deemed by the Board to be affected thereby and that pu lic notice of such hearing having been given by publication in the Register the hearing was opened and held on the date first above written. IN FAVOR OPPOSED . A�krcoJS / E�, ccs \ Rud , - tet° NW-- COO r - COOu flror u--e_ � A--)a\-0014aL_o, `� i S ,. t sb\v' S f QC T Reason for the Decision: Q o--4Q\ " \ Zi % %btP*kP - ‘ 116:1-1 I 0 Motion by:, ff Seconded by: ineC%\CtA Vote: a 11•4 ' r i J 1-4,9>X"\ Members voting in favor: Opposed: Therefore,the SPECIAL PERMIT VARIANCE APPEAL is GRANTED DENIED ()C WITHDRAWN CONTINUED TO: CONDITIONS: EXHIBITS RECEIVED AT HEARING: ( 4, CLERK: Date: CLERK-CHAIRMAN HEARING NOTES YARMOUTH BOARD OF APPEALS ABUTTERS LIST Q Petition# H O Name ,l" ►0-AO SS CO Filing Date: Hearing Date: Property Location: 1 9 3 PN‘ v P Notices must be sent to the petitioner(applicant),abutters,and owners of land directly opposite on any public or private street or way, and abutters to the abutters(only within 300 feet of the property line)of the petitioner as they appear on the most recent applicable tax list. Provide only the abutters map and lot number . You can get assistance with this list from the Assessor's Office. Postage charges for all applications will be determined by multiplying the number of abutters (and the parcel (s)in question) times .540, which is the current cost for the two required mailings. Add that to the application fee and include your check with the application. Map Lot Number Map Lot Number Number / Number Applicant# a `� 0'1 X Abutters#'s .3 Lc ca.0 I X 3 ago Ra t4 (2 1/ 3 5, 2 Labels-1 Hard Copy :2,� Assessors Field Card with photo 1 L 6 - Q Matthew Zurowick,Director of Assessing si t2� a. 1 SCHEDULE OF BOARD OF APPEALS MEETINGS FOR 2009 (subject to change) The Yarmouth Board of Appeals meets at 7:00 p.m. on Thursdays, in the Hearing Room at Town Hall, located at 1146 Route 28, South Yarmouth. FILING DEADLINE*, 12:00 p.m. HEARING DATE December 19, 2008 January 8 January 2 January 22 January 23 February 12 February 6 February 26 February 20 March 12 March 6 March 26 March 20 April 9 April 3 April 23 April 24 May 14 • May 8 May 28 May42 J1 June 5 June 25 June 19 July 9 July 2 July 23 July 24 August 13 August 7 August 27 August 21 September 10 September 4 September 24 September 18 October 8 October 2 October 22 October 23 November 12 November 20 December 10 *Note:The Board of Appeals will take four(4)applications/petitions per meeting/agenda.If the agenda fills before the filing deadline you will be placed on the agenda for the next meeting.It shall be the policy of the Board to conclude all • hearings by 11:00 PM.To this end,the agenda for all hearings shall be closed once it appears to the Board that additional matters will not be able to be accommodated within this time limitation.In the event that the hearings scheduled on an agenda are not concluded by 11:00 PM,the Board may announce that no new matters shall be commenced thereafter,and shall close the hearing as soon thereafter as the Board determines to be appropriate.Any matters not concluded on the scheduled date shall be continued to the next available agenda. 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ILmEEr Pu.r DATE a LATEST MAF PEvaOM wince TAX MAP P rsOPwTIONMO THERWMMPoRASSESSINM la m D 100 200w E TOWN OF YARMOUTH BE© Sheet PUPPOCES war.NO LIABILITY FOR ERROR ASSUMED BAE TORT a YARMOUTH vo Feet 6AMOTASLE COUNTY,MASSACHUSETTS ©©Q 42 D 34/ 280/ / / SHEA RICHARD W TRS SHEA PAULA F TRS 4019 EAGLE COVE WEST DR PALM HARBOR,FL 34685 34/ 281/ / / STARKEY,H CHRISTOPHER STARKEY,LOUISA H 149 RIVER ST SOUTH YARMOUTH,MA 02664 34/ 282/ / / NORTHSTAR PROPERTY MGT LLC 21 AARON'S WAY WEST YARMOUTH,MA 02673 42/ 146/ / / CHURCHILL,W HALLOWELL JR E C HARTSHORNE&F CHURCHILL BASS RIVER TRUST,76 HIGH ST BROOKLINE,MA 02445 43/ 1/ / / HORNE SARAH R ROBBINS DAVID S 47-48 FRANCIS LEWIS BLVD BAYSIDE,NY 11361 43/ 5.1/ / / BURKE,WILLIAM A BURKE,DANA T 103 RIVER ST SOUTH YARMOUTH,MA 02664-6050 or` :YAR - ! p TOWN OF YARMOUTH ,' � BOARD OF APPEALS `: MAl" k APPLICATION TC Pill di r,tn , 3 rm 7, 26 Appeal#: 'i Z bA Hearing Dater Fee$ 1 di-2O Owner-Applicant: William Marasco ) u Naamen-i1_I) 143 River Street, SouthYarmouth,th, A u2664 (Address) (Telephone Number) (Email Address) and is the (check one) fg Owner 0 Tenant 0 Prospective Buyer 0 Other Interested Party Property: This application relates to the property located at: 143 River Street S. Yarmouth and shown on the Assessor's Map it: 0034 as Parcel#: 282 Zoning District: RS40 If property is on an un-constructed(paper)street name of nearest cross street,or other identifying location: Project: The applicant seeks permission to undertake the following construction/use/activity (give a brief description of the project. i.e.: "add a 10'by 15'deck to the front of our house"or "change the use of the existing building on the property"): RELIEF REQUESTED: The applicant seeks the following relief from the Board of Appeals: 1) X REVERSE THE DECISION OF THE BUILDING INSPECTOR OR THE ZONING ADMINISTRATOR dated 7-14-j?&ch a copy of the decision appealed from). State the reason for reversal and the ruling which you request the Board to make. Building Permit issued, pre-existing non-conforming two-family still valid 2) SPECIAL PERMIT under § of the Yarmouth Zoning By-law and/or for a use authorized upon Special Permit in the "Use Regulation Schedule" §202.5 .(use space below if needed) 3) VARIANCE from the Yarmouth Zoning By-law. Specify all sections of the by-law from which relief is requested, and, as to each section, specify the relief sought: Section: Relief sought: Section: Relief sought: Section: Relief sought: ADDITIONAL INFORMATION: Please use the space below to provide any additional information which you feel should be included in your application: FACT SHEET Current Owner of Property as listed on the deed(if other than applicant): Northstar Properties MGT, LLC 21 Aaron' s Way, West Yarmouth Name&Address Title deed reference: Book&Page# 22686/215 or Certificate# Land Court Lot# Plan# (provide copy of recent deed) Use Classification: Existing: Single Family §202.5# Al Proposed: Two-Family §202.5 # A2 Is the property vacant: If so,how long?: Lot Information Size/Area: 24.394 Plan Book and Page / Lot# ` Is this property within the Aquifer Protection Overlay District? Yes No Have you completed a formal commercial site plan review (if needed)? Yes_No Other Department(s)Reviewing Project: Indicate the other Town Departments which are/ have/or will review this project, and indicate the status of their review process: Repetitive Petition: Is this a re-application: If yes, do you have Planning Board Approval? Prior Relief: If the property in question has been the subject of prior application to the Board of Appeals or Zoning Administrator, indicate the date and Appeal number(s)and other available information. Include a copy of the decision(s) with this application: #3908-Granted #4023-Withdrawn #871-Denied Building Commissioner Comments: (?i*ya.Tirr,r 1v iL Applicant's/Attorney/Agent Signature Owner's Signature Address: Phone E-Mail: ding Commissioner Signature i ate 0 ABSENT MEMBER CERTIFICATION MGL c. 39 §23D 1.1 Petitoner/Applicant: �' tk11R(N\ R�i-S C 0 File# 92 A Missed Session : /z(/v/0 (O 9 Hearing to be attended : I I Z S'h d Pursuant to Massachusetts General Laws c. 39 section 23D(a), a member of a municipal board when holding an adjudicatory hearing shall not be disqualified from voting in a matter solely due to that member's absence from no more than a single session of the hearing at which testimony or other evidence was received,provided that before any such vote,the member shall certify in writing that he/she has examined all the evidence received at the missed session,which shall include an audio or video recording of the session or a transcript thereof. The undersigned member of the Yarmouth Zoning Board of Appeals,having missed one session of the hearing on the above-referenced Petition/Application, hereby certify that I have,prior to the Anther hearing that I will attend, examined all the evidence that was presented at the missed session, including the [ ] audio recording, [ ] video recording, [ ] transcript of the hearing, and am therefore not disqualified from voting on the matter. ly a P� �� o Date: � .er: •-•iwr Page 1 of 1 Clark, Sandi From: Clark,Sandi Sent: Wednesday, February 10,2010 1:05 PM • To: 'Eileen McInerney' • Subject: RE: 143 River St.,Yarmouth-William Marasco Hello Eileen, I was unable to get one of the addresses until just now so the following is a list of names and addresses of the members that sat on 1/28/10. Steven DeYoung,Chairman David Reid 691 Willow Street 1292 Route 28 South Yarmouth, MA 02664 South Yarmouth, MA 02664 Sean Igoe,Vice Chair Debra Martin 223 South Sea Avenue P.O. Box 320 West Yarmouth, MA 02673 South Yarmouth, MA 02664 Joseph Sarnosky Bryant Palmer (Alternate) 111 Merchant Ave. 66 Traders Lane YarmouthPort, MA 02675 West Yarmouth, MA 02673 If you have any questions, please feel free to contact me! Sandi From: Eileen McInerney[mailto:eileen.cjhlaw@comcast.net] Sent:Tuesday, February 09, 2010 3:31 PM To: Clark, Sandi Subject: 143 River St.,Yarmouth -William Marasco Importance: High Dear Ms.Clark, We are filing an Appeal in Land Court on the above Decision and we need to serve the Members of the Board at their residential addresses by Certified Mail/Return Receipt Requested. Would you mind providing us with the full names and address of all the Members of the Zoning Board of Appeals of the Town of Yarmouth. Thank you in advance for your cooperation in this matter. Sincerely, Eileen McInerney Legal Assistant to Charles J. Humphreys, Esquire Law Offices of Charles J. Humphreys 15 Brook Street Cohasset,MA 02025 781.383.0600 fax: 781.383.2734 cjhlaw@comcast.net 2/10/2010 a//4) -7lb---> rent. _ 62, �.c_sar. .,a TOWN OF YARMOUTH • o" ,:` C BOARD OF APPEALS x DECISION . —I o n UrrrjD -c FILED WITH TOWN CLERK: February 2,2010 1 ) _ o. PETITION NO: #4268 HEARING DATE: October 22,2009; December 10,2009 and January 28,2010 PETITIONER: William Marasco PROPERTY: 143 River Street, South Yarmouth Map& Parcel: 0034.282 Zoning District: RS40 Book& Page: 22686/215 MEMBERS PRESENT AND VOTING: Steven DeYoung, Chairman, Sean Igoe, Joseph Sarnosky,David Reid,Debra Martin and Bryant Palmer,Alternate. Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register,the hearing opened and held on the date stated above. The Petitioner, William Marasco, initiated his petition seeking to overturn the decision of the Building Inspector. Though the application referenced a decision of the Building Inspector dated 07/14/09 and relates to property in the RS 40 zoning district at 143 River Street, South Yarmouth, Massachusetts, during the protracted hearing, it was acknowledged by all with an interest that, in fact, the applicant sought to overturn the Building Commissioner's decision as set-forth in correspondence to him dated 07/16/09 and the follow-up correspondence of the Building Commissioner,Mr.James Brandolini,dated 08/11/09. The Petitioner sought relief from the Building Inspector's determination that Mr. Marasco "provide sufficient documentation that there was no interruption/lapse beyond two (2)years in the apartment use" (at the subject property) or, "file a variance petition with the Zoning Board of Appeals". At issue is a garage apartment at the applicant's property which was allowed to be reconstructed by way of building permits issued by the Building Inspector in March and April, 2006. Several months prior to these permits issuing, the issue as to whether the use of the property included a lawfully pre-existing, non-conforming, two-family structure arose and was the subject of an opinion issue by then Town Counsel, John Creney. Based upon this opinion and the available information at the time,the Building Commissioner issued the referenced permits. Subsequent information was received by the Commissioner which, ultimately, culminated in his letters of 07/16/09 and 08/11/09 from which appeal was taken by the applicant. 1 The hearing on the requested relief commenced on 12/10/09 and continued to 01/28/10. Over the course of two appearances, Counsel for the applicant and Special Town Counsel each provided the Board with well thought-out and often persuasive argument on a number of ancillary issues, e.g. was there an appealable "decision", was there "abandonment" of the former use, etc. Additionally, many of the applicant's neighbors appeared and spoke or, alternatively, submitted correspondence on the various issues discussed. Generally, these neighbors spoke in opposition to the requested relief. After due consideration of all the submissions and testimony received, the Board was generally sympathetic to the reality that the applicant proceeded with his rehabilitation of his property with the authority of issued building permits and received an occupancy permit. While these factors may be considered should a variance be sought,this is purely speculative. It was, however, noted that the issue before the Board was limited to whether or not the decision of the Building Commissioner should be overturned. Though the applicant furnished new information in the form of yet additional correspondence from Richard Bussiere, the Building Commissioner advised the Board it was not persuasive to the issue of whether the apartment had/had not been abandoned as to its use and thus no longer allowed as a pre-existing, non- conforming use. After all parties had the opportunity to present their respective positions, proof and authorities, Motion was made by Mr. Igoe, seconded by Ms. Martin to overturn the decision of the Building Inspector to require sufficient documentation that there was no interruption/lapse beyond two (2) years in the apartment use of the applicant's property or file a variance petition with the Zoning Board of Appeals. As to this Motion, Ms. Martin and Mr. Igoe voted in favor, Mr. DeYoung, Mr. Reid and Mr. Sarnosky voted opposed and, accordingly, the Motion failed to carry and the applicant's appeal was thus denied. • Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Steven DoCl' ung-Chaim 2 t. _ _ 10,a : � � �4� ' r., , � � � x,09 - , _, ,iN II 4 iiipovioll (5_ ckki , khec-, BOARD OF APPEALS EXECUTIVE SESSION MINUTES JULY 28,2011 Board Members Sitting: Steve DeYoung, Chairman, Sean Igoe,Joseph Sarnosky, Diane Moudouris, Robert Howard and Richard Neitz. Petitioner#4268—William Marasco, 143 River Street, South Yarmouth,MA. Meeting with Thomas Perrino, Special Counsel, in the matter of appeal of William Marasco by the Decision of the Zoning Board of Appeals currently is pending before the Land Court in Boston. Motion to proceed into Executive Session made by Sean Igoe, seconded by Robert Howard, carried unanimously. Mr. Perrino stated there was a pre-trial conference in front of Judge Cutler who read the pre-trial memo that we had submitted. Judge Cutler questioned Mr. Marasco's attorney, Charles Humphries, as to what he expected to get out of an appeal even if he were to win. The Judge has taken the position that the most that she could do if she were to rule in his favor would be too basically due nothing. In essence say ok,Mr. Brandolini didn't have the authority or the Board didn't have the authority to make the Decision he made but she came to the conclusion,that this doesn't really solve Mr. Marasco's problem, it doesn't solve the issue that could be before the Court. Essentially, she concluded that one way to resolve it,the flip side being even if she ruled for the Town,on the narrow issue that Mr. Brandolini's Order was properly upheld,doesn't advance it either. Then Mr. Brandolini would then have to decide whether to take any enforcement action against Mr. Marasco. The gist of what transpired at the pre-trial conference was the Judge encouraging both sides more on Mr. Humphries side and he readily agreed to perhaps as a way of resolving the matter at least come before the Board and seek a Variance. The Variance he would be seeking would be from the section of the by-law which requires the minimum lot size be 2 V2 times for a two family dwelling on that lot within that Zoning District. He would come before the Board and argue his case for the Variance based on the unique circumstances surrounding the structure itself. The lot has some history and I believe when the initial Building Permits were issued there were some questions as to whether or not he met the requirement,he had two front yards based on a corner lot and I think there was some issue whether or not he met the 30 feet with either of them, and I think he reconfigured it. I don't think he came to the Board for a Variance on that I think he reconfigured it and then Mr. Brandolini issued the Building Permits based on that. This is where things stand with the Court, Mr. Humphries is ready to come in, ready to file his paperwork,he has convinced his client it is the right thing to do. This has taken sometime to convince the client that this is the correct way to proceed. The question came up as to why he didn't proceed in the alternative back in 2008-09 and no real good answer. Mr. Humphries responded that he didn't know if Mr. Marasco had an attorney at the time he filed the paperwork. Chairman DeYoung remembered the events at that time and he had counsel, he sought a continuance to change counsel,he sought a continuance because he decided to change counsel,he sought a continuance because he thought he was going to hire Michael Ford and he then came in with Mr. Humphries and possibly another continuance so every bit of graciousness was offered to him and he acted with full knowledge of his alternative remedies available to him and with a conscious decision to only seek the one avenue. Mr. Perrino is looking for some feedback as to how the Board might view such a request. Members weighed in on there thoughts with each feeling that they needed to only make a decision after a hearing. Motion to adjourn from Executive Session and not return was made by Sean Igoe, seconded by Joseph Sarnosky,unanimously voted in favor. Le,/4��/a a Air s , /79d 1''f✓I i6,fa TOWN OF YARMOUTH BOARD OF APPEALS EXECUTIVE SESSION MINUTES Meeting Date: October 14, 2010 PETITIONER#4268—William Marasco, 143 River Street,South Yarmouth Chairman DeYoung opened the regular session of the Board of Appeals stating we have one matter on the agenda for this evening that being Petition #4268 of William Marasco, of 143 River Street, South Yarmouth, regarding zoning property in the RS 40 district and with respect to specific litigation captioned William Marasco v. Steven DeYoung et al Land Court Case #10 MISC #422617 there is no public hearing this evening. The discussion will be regarding matters of strategy concerning litigation and will be discussed in Executive Session. Chairman DeYoung asked for a motion to go into the Executive Session and adjourning from the open session of the meeting and not returning. Mr. Palmer made a motion to close the regular meeting of the Board of Appeals and go into Executive Session and not return to Regular Session for the purpose of discussing strategy in connection with pending litigation. Debra Martin seconded the Motion. Unanimous. Members of the Board present and voting to go into Executive Session by roll call vote were: Steven DeYoung, Chairman,Joseph Samosky, Sean Igoe, Debra Martin&Bryant Palmer. Chairman DeYoung stated that Mr. Sarnosky sat in deliberation of #4268 as was Mr. Igoe, Mr. DeYoung, Ms. Martin and Mr. Palmer was the alternate and Mr. David Reid, formally of this Board as Chair and alternate, sat and voted and Mr. Palmer was present for all the hearings regarding Petition #4268. Mr. Palmer can now step in for a missing member and let the record reflect that Mr. Palmer was present for all of the discussions. Mr. Thomas Perrino, Counsel representing the town on this appeal, addressed the Board noting that this case has been pending since February 2010. A case management hearing was held in the spring and Mr. Brandolini, Building Commissioner, was deposed in the summer by Mr. Charles Humphries, counsel for Mr. Marasco.The Land Court Judge hearing this case realizes that this does not resolve itself, it requires another step by the Building Commissioner to do something i.e. enforcement act, regarding the Use of the property, not necessarily the structure itself. This could trigger another appeal. The judge realized this and noted it was a favorable motion the night of the hearing that did not get the necessary votes. In review of that evening the board did appear somewhat sympathic to Mr. Marasco's situation. Mr. Perrino explained to the Judge that there was no alternative all Mr. Marasco did was appeal the decision he did not apply in the alternative for any type of relief Variance or Special Permit. Mr. Perrino stated that the real issue and the reason he is before the Board is to provide feedback to Mr. Humphries on how the Board would entertain a Variance request. The Board discussed the filing of a Variance which would be for the"use" and a stipulation of dismissal be signed and held in escrow only to become operative upon a successful grant of Variance for which there is no appeal. The Board was polled as to how they would feel about a Variance and all members indicated that they could agree to entertain a Variance with the dismissal of the court case. Mr. Igoe made a motion to adjourn seconded by Ms. Martin. Unanimous. 1 TOWN OF YARMOUTH BOARD OF APPEALS EXECUTIVE SESSION MINUTES Meeting Date: October 14,2010 PETITIONER#4268—William Marasco, 143 River Street,South Yarmouth Chairman DeYoung opened the regular session of the Board of Appeals stating we have one matter on the agenda for this evening that being Petition #4268 of William Marasco, of 143 River Street, South Yarmouth, regarding zoning property in the RS 40 District and with respect to specific litigation captioned William Marasco v. Steven DeYoung et al Land Court Case #10 MISC #422617 there is no public hearing this evening. The discussion will be regarding matters of strategy concerning litigation and will be discussed in Executive Session. Chairman DeYoung asked for a motion to go into the Executive Session and adjourning from the open session of the meeting and not returning. Mr. Palmer made a motion to close the regular meeting of the Board of Appeals and go into Executive Session and not return to Regular Session for the purpose of discussing strategy in connection with pending litigation. Debra Martin seconded the Motion. Unanimous. Members of the Board present and voting to go into Executive Session by roll call vote were: Steven DeYoung, Chairman,Joseph Sarnosky, Sean Igoe, Debra Martin& Bryant Palmer. Chairman DeYoung stated that Mr. Sarnosky sat in deliberation of #4268 as was Mr. Igoe, Mr. DeYoung, Ms. Martin and Mr. Palmer was the alternate and Mr. David Reid, formally of this Board as Chair and alternate, sat and voted and Mr. Palmer was present for all the hearings regarding Petition #4268. Mr. Palmer can now step in for a missing member and let the record reflect that Mr. Palmer was present for all of the discussions. Mr. Thomas Perrino, Counsel representing the town on this appeal, addressed the Board noting that this case has been pending since February 2010. A case management hearing was held in the spring and Mr. Brandolini, Building Commissioner, was deposed in the summer by Mr. Charles Humphries, counsel for Mr. Marasco. The Land Court Judge hearing this case realizes that this does not resolve itself, it requires another step by the Building Commissioner to do something i.e. enforcement act, regarding the Use of the property, not necessarily the structure itself. This could trigger another appeal. The judge realized this and noted it was a favorable motion the night of the hearing that did not get the necessary votes. In review of that evening the board did appear somewhat sympathetic to Mr. Marasco's situation. Mr. Perrino explained to the Judge that there was no alternative all Mr. Marasco did was appeal the decision he did not apply in the alternative for any type of relief Variance or Special Permit. Mr. Perrino stated that the real issue and the reason he is before the Board is to provide feedback to Mr. Humphries on how the Board would entertain a Variance request. The Board discussed the filing of a Variance which would be for the"use" and a stipulation of dismissal be signed and held in escrow only to become operative upon a successful grant of Variance for which there is no appeal. The Board was polled as to how they would feel about a Variance and all members indicated that they could agree to entertain a Variance with the dismissal of the court case. Mr. Igoe made a motion to adjourn seconded by Ms. Martin. Unanimous. 1