DEFRONZO v. ZONING BOARD OF APPEALS OF SALISBURY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The town of Salisbury's zoning board of appeals (board) denied the application of the plaintiffs, Thomas and Susan DeFronzo, for a special permit to extend and alter an existing one-story structure (the multi-unit structure) on their commercial property (locus) and transform it into two-story residential townhouses. The board reasoned that the proposed use was not permitted because the locus is in a commercial zoning district, the original building permit for the multi-unit structure was for a commercial use (a motel), and, although it was being used for residential apartments, conversion from a motel use to a residential use had never been authorized by permit. The board concluded, therefore, that the existing residential use of the multi-unit structure was not a lawful nonconforming use, and reconstruction of the locus could not be allowed by a special permit under G. L. c. 40A, § 6. The plaintiffs filed a “Complaint for Judicial Review” in the Superior Court pursuant to G. L. c. 40A, § 17. In a comprehensive memorandum and decision, the judge agreed with the board's determination, and allowed the board's motion for summary judgment.³ The judge also denied the plaintiffs' motion for reconsideration and relief from judgment. We affirm.

Background. We draw the facts from the parties' joint statement of material facts. The locus is in the town's commercial zoning district. At present, two structures exist on the locus. One, located in the front of the lot, is used as a single-family residence. The multi-unit structure, the subject of this appeal, is located to the rear of the lot; it is a single-story structure used as a three-unit residential apartment building.

We briefly review the history of the multi-unit structure. In 1984, the building inspector issued a building permit for the construction of a three-unit motel. It is unclear from the record when, but over the years the motel morphed into an apartment building. According to the town, it did so without the proper permitting. Between 1997 and 2012, the locus was subject to various actions by the town, including a 1997 approval of a sewer connection to serve the single-family home and three-unit apartment building on the locus. The town also assessed the locus as “residential units.” In addition, at some point prior to 2002, a fourth unit was added to the multi-unit structure. In 2002, the owners ⁴ applied for a special permit to “convert [the] rear building from four apartments to three apartments, by breaking through the wall and making the first two apartments into one.” The stated reason for the modification was “in order to sell the house to [prospective] buyers, the property must be converted from five units, which require commercial financing, to four units, which would only require residential financing.” The board granted the special permit (2002 special permit) authorizing a change of “use from 5-units to 4-units.” A building permit for the 2002 modification is not contained in the record.

Finally, on August 16, 2012, the board of health inspected the multi-unit structure and concluded that at least one of the units required a second egress. It issued a correction order. The owner filed an application for a building permit and described the work as “[i]nstallation of egress doors in 2 residential apartments,” and “2nd egresses in back apartments.” In the “Building Permit Clearance Form,” the proposed work was described as “[i]nstall of 2 egress doors in existing residential apartments.” The building department issued a building permit granting permission to create a second egress in two units (2012 building permit).

Turning to the proposed project on appeal, on August 2, 2017, the plaintiffs applied for a special permit from the board “to permit the alteration of a preexisting nonconforming structure into four up to date residential living units.” The application asserted that “[s]ince June 24, 2002 by ZBA Special Permit, the property has been used [and] occupied as four residential units.” The application also asserted that the existing residential use was a preexisting, nonconforming use. The board concluded that the project could not be allowed because the residential use was unpermitted. It reasoned that the 2002 special permit did not authorize a transformation from a commercial motel use to a residential use because “(1) a variance was required; (2) there is no use variance recorded for the [p]roperty allowing the multi-unit residential use; and (3) use variances have not been available in the Salisbury Zoning Bylaw since 1989.” The board also found that “the only building permit is [the permit], associated with the Use and Occupancy Permit issued to the Property for a ‘3 units motel,’ ” and thus the multi-unit residential use was not protected by G. L. c. 40A, § 7. The judge agreed, applying a somewhat different analysis, and granted summary judgment to the board.

Discussion. We review the judge's summary judgment decision de novo. See Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539, 543-544 (2014). We will not disturb the decision of the board “unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Glidden v. Zoning Bd. of Appeals of Nantucket, 77 Mass. App. Ct. 403, 406 (2010), quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999).

There is no dispute that the proposed multi-family residential townhouse use of the locus is not a use allowed as of right or even by special permit in the town's commercial zoning district. Moreover, the plaintiffs do not refute the board's finding that use variances have not been allowed in Salisbury since 1989. The plaintiffs contend, however, that the existing residential use of the multi-unit structure is a “prior nonconforming use” entitled to the terms and protections of G. L. c. 40A, § 6. They argue that where town entities issued various permits, sewer assessments, and tax assessments treating the structure as residential apartments, such use must be allowed to continue pursuant to G. L. c. 40A, § 7, because no action was brought within six years of the “commencement of [any] alleged violation.” They then argue that because the multi-family use is immune from enforcement under G. L. c. 40A, § 7, it thereby qualifies as a “prior nonconforming use” as that term is used in G. L. c. 40A, § 6. We disagree with the plaintiffs' analysis.

It is true that G. L. c. 40A, § 7, contains limitations periods for municipalities to take enforcement actions against unlawful uses and structures. See Barkan v. Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378, 388 (2019). Section 7 provides in part that “[i]f real property has been improved and used in accordance with the terms of the original building permit,” no action intended to “compel the abandonment, limitation or modification of the use allowed by the permit” shall be maintained unless it has been commenced within six years “of the commencement of the alleged violation.” G. L. c. 40A, § 7, second par. Here, the original building permit authorized use as a motel and does not assist the plaintiffs. However, the term “original building permit” may apply to a subsequent building permit, at least to the extent that it authorizes a new use or even an alteration or expansion of the original use. See Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 218-219 (1982). See also Moreis v. Board of Appeals of Oak Bluffs, 62 Mass. App. Ct. 53, 58-60 (2004).

On appeal, the plaintiffs contend that the 2012 building permit, which allowed alteration of the multi-unit structure by adding a second egress to two existing residential apartment units, is an original building permit. “We have carefully examined” the materials relevant to the 2012 building permit. Moreis, 62 Mass. App. Ct. at 59. Nothing in the application, the internal documents, or the building permit itself suggests that anything other than minor alterations to the existing structure for existing uses was requested or approved. The application did not request that the building permit “allow” the residential use of the structure.

In Moreis, we addressed whether a building permit for a fence to enclose preexisting commercial uses qualified as an “original building permit” and thus authorized the preexisting commercial uses. Moreis, 62 Mass. App. Ct. at 60. We concluded that “[t]he fact that a preexisting, unlawful, unpermitted use was incidentally described on an application to erect a fence does not, in our view, bring the unlawful use within the protection of § 7.” Id. The same analysis applies here. Where, at most, the 2012 building permit authorized the installation of and use of a second egress, the fact that the application and other documents described the structure as “residential apartments,” does not bring the residential use of the multi-unit structure within the protection of G. L. c. 40A, § 7. Compare Cape Resort Hotels, Inc., 385 Mass. at 219 (use protected where application for building permit for addition to hotel included plans “clearly” showing addition would be used as bar and entertainment area).⁵

The plaintiffs argue that “[i]t is completely inequitable for the [t]own ․ to force the Property's owner to comply with the requirements of residential use zoning, under penalty of law, while at the same time prohibiting the owner from using the Property for residential purposes.” They also argue in their motion for reconsideration and on appeal that the town's failure to produce the 2012 correction order in discovery warranted reversal of the judge's summary judgment decision. As the judge pointed out, however, the town did not compel the plaintiffs to use the multi-unit structure for residential use. The protections of G. L. c. 40A, § 7, arise only when a building permit has been granted “allowing” the use. References in the building permit materials to an existing residential use is not enough to trigger § 7 protections. Nor is the fact that the board of health ordered for safety purposes the installation of an additional egress for an existing use.⁶ ,  ⁷

Finally, we note that even if the residential use was protected from enforcement under § 7, the plaintiffs' basic premise that it thereby qualifies as a “preexisting nonconforming use”⁸ entitled to G. L. c. 40A, § 6, protections, is faulty. Section 7 merely prohibits a municipality in certain circumstances from compelling “abandonment, limitation or modification” of a use allowed by a building permit. G. L. c. 40A, § 7, second par. We have rejected the argument that a use immune from enforcement under § 7 constitutes a “[p]reexisting nonconforming” use which, pursuant to G. L. c. 40A, § 6, may be “extended or altered” with “a finding by the permit granting authority or by the special permit granting authority ․ that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” See Leonard v. Zoning Bd. of Appeals of Hanover, 96 Mass. App. Ct. 490, 497 (2019); Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527, 536-537 (2004). Compare Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 531 (1990) (“It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use”).⁹ The same rationale applies here.¹⁰

Judgment affirmed.

Order denying motion for reconsideration and relief from judgment affirmed.

FOOTNOTES

3.   The parties filed cross motions for summary judgment. The judge denied the plaintiffs' motion and allowed the board's motion.

4.   The owners of the property in 2002 are not the plaintiffs in this action.

5.   While the plaintiffs direct our attention to other actions by the town indicating its awareness of the residential use of the multi-unit structure, we are not persuaded that those actions allow the plaintiffs to invoke the protections contained in G. L. c. 40A, § 7, that flow from the grant of an original building permit.

6.   We are not unsympathetic to the plaintiffs' frustration given the number of indications from the town that it may have been aware of the residential use of the locus and even assessed it as such. For zoning purposes, however, general principles of estoppel are not applicable to prevent a municipality from enforcing its zoning bylaw or ordinance “even where there has been a substantial financial investment.” Cape Resort Hotels, Inc., 385 Mass. at 224. The protections of G. L. c. 40A, § 7 arise in the narrow circumstances of the grant of an approving building permit.

7.   The plaintiffs' appeal from the denial of their motion for reconsideration and relief from judgment has been consolidated in this appeal. We discern no abuse of discretion in the denial of that motion particularly where it bore on general issues of estoppel which, as noted above, do not apply here. We further note that the judge found that the plaintiffs did not demonstrate that the town and board “failed to produce the Corrections Order when previously requested to do so.” We cannot say on the record before us that this finding constituted clear error.

8.   A use achieves status as a “pre-existing nonconforming ․ use[ ]” under G. L. c. 40A, § 6, “if it precedes the coming into being of the zoning regulation which prohibits it.” Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 529-530 (1990). See Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527, 536 (2004).

9.   We are aware that the Legislature amended § 7 in 2016 to provide that “structure[s]” may acquire nonconforming status for purposes of § 6 if no enforcement action has been commenced within ten years. G. L. c. 40A, § 7, third par. That provision, by its terms, does not apply to “use[s]” that do not comply with zoning requirements.

10.   To the extent we do not discuss other arguments made by the parties, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).