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Appeals Court of Massachusetts.

Robert M. SCHLEIN 1 v. 68 DANE STREET LLC & another.2


Decided: March 05, 2021

By the Court (Neyman, Shin & Singh, JJ.3)


The plaintiff, Robert M. Schlein, appeals from a decision of a judge of the Superior Court substantially upholding a special permit granted to his abutter, 68 Dane Street LLC (the redeveloper). The plaintiff contends that the town of Beverly's zoning ordinance (ordinance) requires the redeveloper to fully conform to the bylaw's parking requirements for the residential zoning district because it proposes to transform one use to another. For the reasons that follow we reject the plaintiff's argument and affirm the judgment.

The locus is 68 Dane Street in the R6 residential zoning district in the town of Beverly (town) and is improved with a large Victorian-style structure that historically has been used as a twenty-bedroom lodging house. The use has long existed as a lawful prior nonconforming use in a zone that allows primarily one and two-family residences. The redeveloper proposes to transform the structure into six condominiums with a total of thirteen bedrooms. The proposed use also would be a nonconforming use, though the judge found that it would be more conforming. The redeveloper proposes to provide six parking spaces, one of which would not be accessible if the adjacent space is occupied.

“[T]he decision of a board ‘cannot be disturbed unless it is based on a legally untenable ground’ or is based on an ‘unreasonable, whimsical, capricious or arbitrary’ exercise of its judgment in applying land use regulation to the facts as found by the judge” (citations omitted). Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381-382 (2009). The plaintiff contends that pursuant to article X, § 300-59 A, of the ordinance, “[f]or any ․ change from one use to another ․, off-street parking and loading space shall be provided in accordance with” a schedule contained in the ordinance. The schedule requires two off-street parking spaces per residential unit. The plaintiff argues, therefore, that the redeveloper must provide twelve parking spaces and that there can be no deviation from that requirement.

The plaintiff's reliance on § 300-59 is misplaced. It applies to changing one use to another, but § 300-82 C of the ordinance applies to substituting a new nonconforming use for another nonconforming use. Section 300-82 C provides that the zoning board of appeals may issue a special permit to allow the substitution of a new nonconforming use for an existing nonconforming use, provided that the new use is “no less compatible with the zoning district ․, [which] shall mean it complies with the criteria set forth in § 300-91B.” This provision of the ordinance, which more closely aligns with the project at issue that proposes substituting nonconforming uses, is the more specific provision and, together with § 300-85,4 indicates that the requirements of § 300-59 are not controlling here. See Higgins v. Swansea, 72 Mass. App. Ct. 911, 912 (2008) (issue governed by more specific provision of statute viewed as exception to another statute's more general provisions). The redeveloper sought and was granted a special permit that the zoning board of appeals and the judge concluded complied with the criteria of § 300-91 and the judge remanded to the board specifically to reconsider the parking component of the application and the board voted again to grant the special permit.

Having rejected the plaintiff's contention that § 300-59 controls the parking requirements for the site, we turn to his argument that the board exceeded its authority in granting the special permit. Rather than address the multiple criteria listed under § 300-91, the plaintiff focuses on only one -- that “there are no valid objections from abutting property owners based on demonstrable fact.” The plaintiff contends he has raised a valid objection because the parking plan does not comply with the requirements of § 300-59. However, because the provisions of § 300-59 do not apply to the change of one nonconforming use to another nonconforming use, the plaintiff's argument is unavailing.

The plaintiff has failed to demonstrate that the board abused its discretion or otherwise erred in granting the special permit.

Judgment affirmed.


4.   Section 300-85 contains provisions explicitly allowing the special permit granting authority to waive certain parking requirements when the use of a structure that does not have the requisite parking is changed to another use that does not have the requisite parking.

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