HOWARD L. GAMSEY vs. BUILDING INSPECTOR OF CHATHAM & another. [Note 1]

DREBEN, J. The plaintiff owns a resort motel in Chatham which he intends to convert to condominium units. [Note 2] After the building inspector and town counsel informed him that

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Section 5.97 [Note 3] of the zoning by-law of Chatham requires a special permit to effect such a conversion, the plaintiff, without applying for a special permit, brought this action under G. L. c. 240, Section 14A, and under G. L. c. 231A seeking a declaration that the by-law provision was invalid. [Note 4] A judge of the Land Court held, contrary to the town's contentions, that the plaintiff was not required to exhaust his administrative remedies before bringing an action under G. L. c. 240, Section 14A, and that the town could not require the plaintiff to obtain a special permit. He ruled "that insofar as the Plaintiff's proposed conversion contemplates no structural change and will restrict use of the units to their present seasonal use, the proposal is not a change in use, but merely a change of ownership."

We agree that the action was properly brought under G. L. c. 240, Section 14A, but conclude that the by-law's application to the plaintiff is valid and that he must seek a special permit.

1. The town's procedural claim is that G. L. c. 231A requires the plaintiff to exhaust his administrative remedies. The plaintiff, however, brought this action under both G. L. c. 231A and G. L. c. 240, Section 14A. The latter statute, set forth in the margin, [Note 5] "specifically provides landowners

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with a cause of action [against a municipality] to determine `the validity of . . . or . . . the extent to which any zoning ordinance, by-law or regulation affects' a proposed use of their property (emphasis supplied)." Banquer Realty Co. v. Acting Bldg. Commr. of Boston, 389 Mass. 565, 570 (1983). "In the case of G. L. c. 240, Section 14A, the Legislature has determined that resort to local zoning procedures is not a necessary prerequisite to obtaining judicial relief." Id. at 573. Since the matter was properly before the Land Court under c. 240, Section 14A, we follow the course taken by the trial judge and refrain from discussing the requirements of exhaustion under G. L. c. 231A. Contrast Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 (1985).

2. Turning to the merits -- it is fundamental that zoning is concerned with the use, without regard to ownership, of the property involved. CHR General, Inc. v. Newton, 387 Mass. 351, 356 (1982). In that case, and also in Bannerman v. Fall River, 391 Mass. 328 (1984), the Supreme Judicial Court held that ordinances which, under a municipality's zoning powers, attempted to regulate the conversion of rental apartments to condominium units were invalid. The basis for the decisions was that a building composed of condominium units does not use the land upon which it sits any differently from a building containing apartments. In both opinions the court distinguished Goldman v. Dennis, 375 Mass. 197 (1978), the case most heavily relied upon here by the town.

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In Goldman, the tracts in question were "cottage colonies" which were prohibited in all zones of the town, except as nonconforming uses. In upholding a by-law which provided that an existing nonconforming cottage colony may not be converted "to single family use under condominium type ownership" unless the lot on which each building is located meets certain minimum requirements, the Supreme Judicial Court concluded, at 199, that "[t]he legislative body of the town could reasonably believe that conversion of a cottage colony to single family use under condominium type ownership would encourage expansion of use beyond the short summer season." Pointing out that the "by-law is explicit in its limitation of the expansion of a nonconforming use, the court held that although "the limitation is phrased in terms of the type of ownership, we think it is valid as a regulation of `change of use'." Ibid.

In Sullivan v. Board of Appeals of Harwich, 15 Mass. App. Ct. 286 (1983), this court held, at 290, that the Harwich zoning by-law did not prevent the owners of two, two-family dwellings, used primarily as summer rental units, from converting the units to condominium ownership. The houses, lawful when constructed, were valid nonconforming uses in what had become a single family residence district. Crucial to the court's reasoning, allowing the conversion, were the silence of the Harwich zoning by-law on the subject of the conversion of summer rental properties to condominiums and the permissive nature of the general by-law governing extensions and alterations of nonconforming uses. Recognizing that "there is arguably a qualitative difference between summer rental units and individually owned condominium units," we concluded in Sullivan that "in the absence of a by-law more directly addressing the arguably special problems of condominium conversion of seasonal rental properties, we apply the general principles that a nonconforming use is not extinguished by a transfer of property . . . and that a change in the form of ownership does not by itself effect a change of use." Sullivan, 15 Mass. App. Ct. at 288, 290.

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In contrast to the silence in the zoning by-law of Sullivan, the Chatham by-law, as was the provision in Goldman, is explicit. It regulates the conversion of public lodgings to condominiums and specifically requires compliance with sewage provisions. Other sections of the Chatham by-law also show concern with such problems. [Note 6] Indeed, the evidence in this case bears out the reasonableness of the legislative determination that there are likely to be qualitative differences between a public lodging use which is usually transient and sporadic and a condominium use which is more steady and often long term. [Note 7]

The plaintiff's business records from 1984 through 1987 showed the following monthly occupancy levels: 20% in May; 20% in June; 70% in July; 80% in August; 50% in September; and 20% in October. Although the plaintiff voluntarily agreed to limit the use of his converted units to the existing six-month season, he had no proposal to prevent purchasers from occupying their condominium units continuously from May 1st to October 31st. He also had no plan to prohibit condominium owners from installing washing machines or other large appliances which would increase the level of water usage and waste disposal. [Note 8] A conversion from motel to condominium use may well entail more than a "paper" conversion changing the form of ownership without altering the use of the land. See CHR General, Inc. v. Newton,

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387 Mass. at 356-357; Bannerman v. Fall River, 391 Mass. at 332.

A municipality may adopt zoning provisions to deal with a variety of matters, including adequate provision for water and sewage, the conservation of natural resources, and the prevention of environmental pollution. Sturges v. Chilmark, 380 Mass. 246, 253 (1980). We hold that the legislative body of Chatham could reasonably determine that the conversion of public lodgings to condominiums might constitute a change "in the quality or character, as well as the degree, of use," see Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469, 472 (1988) (reversed on other grounds, 404 Mass. 571 [1989]), and that such conversion might increase the burden on the town's sewage disposal system and should be subject to regulation under the zoning law.

It is well settled that every presumption must be made in favor of the validity of a zoning by-law, and great weight is given to a town's determination that a necessity exists for its adoption. Marshall v. Town of Topsfield, 13 Mass. App. Ct. 425, 428 (1982). Following that principle, and following the implications of Goldman and Sullivan, we conclude that the explicit by-law provision which requires the plaintiff to seek a special permit before he may convert his motel units to condominium ownership is valid.

Judgment reversed.