Cosco-Guido v. Mulhern, 20 Mass. L. Rptr. No. 2, 35 (MA 8/19/2005)

• Decision Date: 19 August 2005
• Docket Number: No. 030670.,030670.
• Parties: Robin Cosco-Guido et al.<SMALL><SUP>1</SUP></SMALL> v. Christopher H. Mulhern et al.<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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20 Mass. L. Rptr. No. 2, 35

Robin Cosco-Guido et al.¹ v. Christopher H. Mulhern et al.²

No. 030670.

Superior Court of Massachusetts.

Middlesex, Ss.

Memorandum Dated August 19, 2005.

Zoning — Nonconforming Uses — Expansion — Only an Extreme Increase in Activity Being Conducted as a Nonconforming Use Will Constitute an Impermissible Expansion Into a Different Use.

Only an extreme expansion of the volume of business conducted as a preexisting nonconforming use will constitute an impermissible expansion into a different use. This opinion holds that a doubling of the number of trucks stored on a parking lot, an increase in the hours of operation of an associated repair facility to include weekends and the storage of larger trucks constitutes a permissible intensification of a preexisting nonconforming use, not an impermissible expansion into a different use.

CHRISTINE M. McEVOY, J.

INTRODUCTION

The plaintiffs bring this action pursuant to G.L.c. 40A, §§7, 17, appealing the Winchester Zoning Board of Appeal's decision that the defendants' use of their property for a trucking business, a repair shop, and a commercial parking area are valid preexisting, nonconforming uses. This case was tried before this Court from March 10, 2005 to March 15, 2005. Upon consideration of all the evidence presented at trial, this Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACTS

Number 9 Chapin Street in Winchester, MA, a property located in a light industrial zone, was owned by Nicholas Ronzio ("Ronzio") from 1956 to 1999. In 1956, Ronzio applied to the Town of Winchester ("the Town") for a permit to build a garage for a repair shop on his property. Ronzio intended to use the garage to store and repair ten-wheel trucks used in heavy highway construction and similar work. The Town granted Ronzio the permit. Residents who lived on Chapin Street requested that the Town revoke Ronzio's permit because of safety concerns. The Board of Appeals ("the Board") upheld Ronzio's permit, finding that there were no safety threats to the residents and that the use was in accordance with the zoning laws. The repair shop serviced cars, boats, trucks, and other mechanical equipment including lawn mowers. The repair shop was open weekdays from 8 a.m. until 4 or 5 p.m. The Town issued Ronzio a certificate of non-conforming use for the repair shop on June 9, 1999.

At the time Ronzio acquired 9 Chapin Street, there were three empty lots, 639, 640 and 641 ("the lots"), adjacent to his property that were owned by Harry Chefalo ("Chefalo"). In 1958, Chefalo petitioned the Board for a permit to remove loam from the lots for the purpose of paving a commercial parking lot for trucks. The Board held that the use of the lots for commercial parking was allowed under the Town's 1953 By-Laws, sections 5 and 6. It also granted Chefalo a permit to remove the loam in order to make the lots suitable for parking. The Board noted that it did not believe that Chefalo needed a permit to remove the loam. However, the Board also found that a permit was needed to remove loam for construction, and since the Board was not sure whether building a parking lot could be considered construction, the Board issued him a permit. The permit stated that if the loam was not removed within a year, the permit would expire.

During the 1950s and 1960s, Chefalo continuously used the lots for parking commercial trucks. He rented between eight and fifteen parking spaces to various businesses. In the early 1970s Ronzio purchased the lots, from Chefalo. During the period that Ronzio owned the lots he continuously parked between ten to eighteen trucks in the lots, including two oil trucks, ten-wheel trucks, and snow plow equipment.

In the 1970s, Ronzio began to operate a trucking business out of 9 Chapin Street. His trucking fleet consisted

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of between seven and ten, ten-wheel trucks and a backhoe. The trucks left in the morning to make daily runs and would return in the afternoon. Ronzio operated his trucking business on weekdays between the hours of 8 a.m. and 5 to 7 p.m. and occasionally on the weekend.

From 1996 to 1999, Ronzio's business began to decline due to his failing health. There was limited activity in the garage and only three to five vehicles used the commercial parking lot. The amount of business traffic on Chapin Street decreased as well. Overall, there was a significant decline in the level of activity at 9 Chapin Street.

In June of 1999, the Gurrisi Family Trust, by its trustee William C. Gurrisi ("Gurrisi"), purchased 9 Chapin Street and the parking lot from Ronzio. Gurrisi continued to operate a repair shop, a trucking business, and the commercial parking lot on the premises. Under Gurrisi, the businesses began to thrive, resulting in an increase of traffic on Chapin Street and longer hours of operation. With the expansion of the repair shop and the trucking business, vehicles and heavy tow equipment entered the property at various hours of the day and night, even on weekends. The truck traffic on Chapin and Swanton³ Streets intensified with large panel trucks, sanders, snow plows, front-end loaders, a flatbed truck, and eighteen wheeler trucks exiting and returning to 9 Chapin Street during all hours of the day and night.⁴ These large vehicles often have to back into Chapin Street in order to access 9 Chapin Street.⁵

In addition to the increase in traffic, the trucks were often left idling in the street while waiting for a space in the parking lot. The parking lot is often occupied with twenty or more vehicles. This, coupled with the expansion of traffic flow, increased the amount of exhaust fumes in the plaintiffs' homes. Gurrisi also placed an oil tank outside the building, added exterior lighting that illuminates the neighborhood at night, and increased the amount of repair work done outside of the repair garage. The heightened amount of traffic and outside repair work, coupled with the vehicles left idling in the parking lot, significantly increased the level of noise and air pollution emanating from 9 Chapin Street.

On September 24, 2002, the plaintiffs,⁶ who reside at and/or own houses located on or near Chapin Street, filed a formal complaint with the Winchester Zoning Enforcement Officer ("ZEO"). The plaintiffs raised concerns about possible zoning violations at 9 Chapin Street, including the number, size and type of vehicles being used for the trucking and repair business. They also raised concerns about the unsafe nature of eighteen-wheel trucks backing down a short street with residential homes. On October 1, 2002, the ZEO held that all uses complained of by the plaintiffs were valid preexisting, nonconforming uses. The plaintiffs appealed to the Board and a public hearing was held on November 19, 2002. On January 7, 2003, the Board issued a decision confirming the ZEO's finding that the commercial parking lot, trucking business, and repair garage were valid, preexisting, nonconforming uses. The plaintiffs appealed to this Court.

RULINGS OF LAW

Massachusetts General Law c. 40A, §6, provides that a prior nonconforming use of land, if lawfully created, is exempt from subsequently enacted zoning provisions that prohibit the use. A use protected under G.L.c. 40A, §6, must be established prior to the Zoning By-Law which prohibits the use, and it must have been lawful at the time established. Once it is established that a prior nonconforming use is valid, the protections under G.L.c. 40A, §6 can be lost. "To preserve the protection afforded a preexisting, nonconforming use under G.L.c. §6, any subsequent use of the property must not constitute a `change or substantial extension' of the nonconforming use." Ka-Hur Enterprises, Inc. v. Zoning Bd. Of Appeals of Provincetown, 40 Mass.App.Ct. 71, 74 (1996), affd, 424 Mass. 404 (March 10, 1997). "Once there is a change or substantial extension to a nonconforming use, the resulting use must comply with the current zoning by-laws to avoid becoming an illegal use." Oakham Sand and Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 84 (2002)

A. Valid Preexisting Use

In 1958, the Board issued a decision stating that under sections 5 and 6 of the 1953 By-Laws, Chefalo, the owner of lots 639, 640, 641 at the time, could use the lots for a commercial parking lot. In addition, the Board granted Chefalo a permit for the removal of loam on the lots, which expired if the loam was not removed within a year. The Board noted that it was unclear under the By-Laws whether Chefalo needed a permit to remove the loam, because a permit was only necessary for removal of loam in connection with excavation for construction. However, the Board granted the permit stating that the building of a parking lot could possibly be interpreted as construction.

In 2003, the plaintiffs argued to the Board that the 1958 decision was based upon a misunderstanding of the law, and because Chefalo had failed to comply with the permit by not removing the loam within a year, the permit was void making the use of the lots invalid.⁷ The 2003 Board only addressed the issue regarding the loam removal permit. The Board in 2003 held that the Zoning Laws in 1958 only required a permit to remove loam in relation to construction, and since the removal of the loam was not being done for construction, Chefalo had no obligation to obtain a permit before he removed the loam. Therefore, whether or not Chefalo complied with the permit was irrelevant to the lawful use of the lots for a commercial parking lot.⁸ "The reasonable construction that a zoning board of appeals gives to the by-laws it is charged with implementing is entitled to deference." Cameron v. Divirgillo, 55 Mass.App.Ct. 24, 29 (2002). The plaintiffs have failed to present to this Court evidence that demonstrated that the 2003 Board's interpretation of the

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1953 By-Laws was unreasonable. Accordingly, this Court defers to the Board's interpretation...