LUIGI GUARINO vs. RICHARD C. LYNDS, PAUL W. MARKS, and BRIAN J. BEATTIE, as they constitute the WINTHROP BOARD OF APPEALS, and ANNE BALDWIN

Plaintiff filed his unverified Complaint on December 20, 2007, appealing pursuant to G. L. c. 40A, § 17 a decision of Defendant Winthrop Board of Appeals (“ZBA”) which overturned the refusal of the Winthrop Building Inspector (the “Building Inspector”) to revoke a building permit issued to Plaintiff for an addition to a garage relative to property owned by Plaintiff and located at 200 Pauline Street, Winthrop, Massachusetts (“Locus”). [Note 1] On February 13, 2008, Defendant Anne Baldwin (“Baldwin”) (together with the ZBA, “Defendants”) filed a Motion to Intervene, which was allowed on February 14, 2008. At the request of the parties, this court issued a Remand Order on February 15, 2008, remanding the matter to the ZBA for further consideration. On April 29, 2008, the ZBA issued a second decision, which was appealed by Plaintiff on May 28, 2008. On June 30, 2008, Baldwin filed an Answer and Counterclaim, requesting injunctive relief to require Plaintiff to remove alterations to his garage.

Baldwin filed her Motion for Summary Judgment on March 24, 2009, together with supporting memorandum, statement of Undisputed Facts, and Affidavit of Rebecca L. Sipowicz, Esq. On April 21, 2009, the ZBA filed its Assent to Baldwin’s motion for summary judgment. On the same day, Plaintiff filed his Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Facts, Appendix, and Affidavits of Luigi Guarino and Michael J. Markoff, Esq. The ZBA filed its Opposition to Plaintiff’s cross-motion on May 26, 2009, and Baldwin filed her Opposition on May 27, 2009. On June 5, 2009, Plaintiff filed his Reply, together with Motion to Deem as Admitted Certain Facts. Baldwin filed her Opposition to Plaintiff’s Motion to Deem as Admitted on June 10, 2009, and the ZBA filed its Opposition to the Motion to Deem as Admitted on June 12, 2009. A hearing was held on all motions on June 15, 2009, at which time all motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. By deed dated May 27, 2004, Plaintiff purchased Locus, which contained a single-family residence, a shed, and a detached garage (the “Garage”). [Note 2] Locus contains 11,885 square feet and is shown on a recorded plan dated June 12, 1874. [Note 3] Locus is located in a Residential A District.

2. The Garage is approximately 20' x 60', as shown on “Plan of Land in Winthrop, MA Belonging to: Lou Guarino” dated July 7, 2004, and prepared by Albert A. Romano, Surveyor (the “2004 Plan”). The Garage contained six separate bays for parking motor vehicles, separated by interior walls, each bay with its own garage door. [Note 4] The sides and rear of the Garage were located within five feet of the side and rear lot lines. The Garage predated zoning.

3. Baldwin lives at 204 Pauline Street, Winthrop, Massachusetts. Her property abuts Locus.

4. The Town of Winthrop Zoning By-law (the “By-law”) was first adopted in 1977 and amended in 1982, 1989, 1992, and 2006 (the “2006 Amendment”). The 1977 By-law established side and rear yard setbacks of five feet in a residential zone.

5. On August 16, 2004, Plaintiff applied for a variance (the “Variance”) to enlarge the Garage by adding a 40' x 25' addition that violated the height restriction in the By-law. The 2004 Plan was attached to this application. The ZBA approved the Variance on July 29, 2005. Baldwin appealed the Variance to the Land Court and Plaintiff settled the case by agreeing (the “Agreement for Judgment”) to forfeit the Variance. [Note 5] The Agreement for Judgment stated that

upon annulling the decision of the Board of Appeals of the Town of Winthrop dated July 29, 2005, the Application for Variance filed by the Defendants Luigi Guarino and Ann Mulvaney dated August 16, 2004 shall not be acted upon favorably (as that phrase is used in G.L. c. 40, Sec. 16) by the Board of Appeals by the granting of said variance, if at all, until on or after July 1, 2008.

6. On October 11, 2006, Plaintiff applied for a building permit to build a 39½' x 26' addition (the “Addition”) to the Garage. The plans attached to the application show the Addition attached to the northerly wall of the Garage (facing Locus’ residence). [Note 6] The sides of the Addition are approximately ten feet from the side lot lines. The Addition is accessed, in part, by two large bay doors. The Addition meets all the current density and dimensional requirements of the By-law.

7. On October 17, 2006, the Building Inspector issued a building permit (the “Building Permit”) for the Addition. The Building Permit stated, on its face, written in pen, “no boat storage without permits.” Plaintiff has completed most of the work on the Addition, including removing the interior walls of the Garage and replacing the six doors in the Garage with two larger bay doors in the Addition. [Note 7]

8. By letter dated September 13, 2007 (the “Baldwin Letter”), Baldwin requested that the Building Inspector require Plaintiff to cease and desist any further construction on the Addition and to remove the Addition. [Note 8] The Building Inspector refused to take such action by letter dated October 3, 2007. Baldwin appealed the Building Inspector’s decision to the ZBA, which reversed the Building Inspector and revoked the Building Permit by decision dated November 29, 2007 (“ZBA Decision 1”). [Note 9]

As reasons for its revocation of the Building Permit, ZBA Decision 1 stated:

(1) The decision of the Building Inspector dated October 3, 2007 is hereby reversed based on the Board’s agreement with petitioner’s assertion that alteration of the garage is not permitted without a permit by the Board of Appeals, specifically because:

(a) pre-existing use of Mr. Guarino’s garage to park six (6) motor vehicles is non-conforming as the Zoning By-Laws limit the use of a garage in a residential district to the parking of not more than three (3) motor vehicles.

(b) use of the garage is non-conforming and the expansion thereof beyond 25% of the original square footage requires issuance of a variance; and

(c) proposed use of the garage for building and repair of a boat for personal use is not permitted under the By-Laws.

(2) The Board also finds that any work that has been done on the premises was unlawful, regardless of whether or not the permit was properly voided or rescinded, due to the [Agreement for Judgment].

9. After a remand to the ZBA, the ZBA issued a second decision dated April 29, 2008 (“ZBA Decision 2”), which also revoked the Building Permit. ZBA Decision 2 gave the same reasons as ZBA Decision 1 for the revocation of the Building Permit.

10. Since the construction of the Addition, Plaintiff has not increased the number of motor vehicles parked in the Garage. Plaintiff stores several boats in the Addition. [Note 10]

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This court must first address Plaintiff’s Motion to Deem as Admitted Facts Stated in Plaintiff’s Statement of Material Facts. Plaintiff argues that, pursuant to the Rules of the Land Court, certain facts must be deemed to be admitted as Defendants did not cite any valid basis for their denials. [Note 11] Defendants contend that Plaintiff relies primarily on his own self-serving affidavit as support for his facts and that Plaintiff cannot rely on such statements with no basis. However, Defendants have not filed any counter affidavits to contest any statements in Guarino’s affidavit. [Note 12] As a result, I ALLOW Plaintiff’s Motion to Deem as Admitted. As a practical matter, most of the facts referenced in Plaintiff’s motion are irrelevant to the issues in this case and, as a result, are not relied upon by this court.

Relevant Legal Provisions.

The first paragraph of G. L. c. 40A, § 6 (“Section 6”) states as follows:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun . . . 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 except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. . . .

The 2006 Amendment contained the following provisions:

Article IV (Use Regulations), § 145-18. Parking in residence districts.

. . . .

B. Parking of other vehicles in residence districts.

(1) Garage or driveway space may be provided for not more than three noncommercial vehicles per dwelling unit, including a single truck or commercial vehicle not exceeding three-quarter-ton capacity. [Note 13]

Article IV (Use Regulations), § 145-20. Accessory uses.

A. Residential A. District. Accessory uses shall include the following:

. . . .

(4) Garage for parking noncommercial vehicles.

(5) Storage shed or barn not exceeding 1,200 square feet in area or 16 feet in height.

Article V (Dimensional Regulations), § 145-23 (“Section 145-23”). General regulations.

. . . .

C. Yard Requirements for all districts. . . . . . . . (5) An accessory building attached to a principal building shall comply in all respects with the yard requirements of this chapter for the principal building. An unattached accessory building not greater than 16 feet in height serving a dwelling in a Residential A District may be located in a side or rear yard within five feet of a side or rear lot line and not closer than 10 feet from the principal building. [Note 14]

Article VI (Off-Street Parking and Loading), § 145-26. Off-street parking required facilities. . . . . H. In residential districts, no boat over 26 feet in length shall be parked or stored within 10 feet of any structure or within four feet of any property line, and no boat shall be parked or stored so as to occupy any part of an area required for off-street parking.

Article VIII (Nonconforming Uses), § 145-44(B) (Extension and alteration) of the 2006 Amendment states, in part:

(3) Any nonconforming accessory use of a portion of a structure or any conforming accessory use of a portion of a nonconforming structure may be extended up to a maximum of 25% of the floor area of the existing structure.

(4) Any nonconforming structure may be altered and the use extended throughout the altered portion, provided that any resultant alteration shall not cause the structure to violate the dimensional and density regulations of the district in which it is located. Section 145-44(D)(1) of the 2006 Amendment states that “[a]ny nonconforming use of a structure may be changed to another nonconforming use by special permit, provided that the changed use is not a substantially different use as determined by the [ZBA].”

Nonconforming Structures.

The central issue in this case is the legal status of the Building Permit. Both parties concur that the Garage, with its purported violation of side and rear yard setbacks, is a pre-existing nonconforming structure and that the parking of six motor vehicles in the Garage is a pre-existing nonconforming use. However, this court disagrees with the parties as to whether the Garage is a nonconforming structure under the By-law. With respect to dimensional requirements, the Garage is a structure allowed by right pursuant to Section 145-23 as it is “an unattached accessory building not greater than 16 feet in height serving a dwelling in a Residential A District . . . within five feet of a side or rear lot line and not closer than 10 feet from the principal building.” As such, this court shall not treat the Garage as a pre-existing nonconforming structure and, thus, need not continue into a discussion on the modification of nonconforming structures.

However, the question remains whether the Addition is allowed by right or whether its existence requires a dimensional variance. As the Addition (1,027 square feet) is attached to, and approximately the same size as the Garage (1,200 square feet), it is, in effect, doubling the size of the Garage. As such, there is an issue as to whether the Addition meets all of the dimensional requirements of the By-law and whether it needs a variance from such requirements. [Note 15] As ZBA Decision 2 failed to address this issue, I remand this issue to the ZBA for such a determination.

Nonconforming Uses. [Note 16]

According to the summary judgment record, the only change of use for the Addition is the storage of boats. Plaintiff intends to utilize the Addition to continue parking up to a maximum of six vehicles (a pre-existing nonconforming use), plus the storage of several boats. Plaintiff argues that his use of the Addition for the storage of boats is not a commercial use and is merely a use incidental to a single-family residence. [Note 17] Plaintiff also claims that since the nonconforming use (the parking of six vehicles) was not expanded so as to be more detrimental to the neighborhood or result in an increase in the nonconformity, neither a special permit nor a variance is required. Defendants argue that, pursuant to Section 6, Plaintiff required a special permit for the construction of the Addition to house the nonconforming use, and pursuant to Section 145-44(B)(3) of the 2006 Amendment, Plaintiff required a variance for the Addition’s use.

With good reason, the first two sentences of Section 6 has been described as “difficult and infelicitous.” Blasco v. Board of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 33 (1991) (citing Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 55-56 (1985)). Case law interpreting such language reveals a multi-part test employed to determine the validity of changes in nonconforming uses. [Note 18] The first inquiry is whether the proposed use changes or substantially extends the nonconformity. Whether a change in the nonconformity does, in fact, result from the proposal is determined pursuant to the so-called Powers Test, which asks the following questions: “(1) [w]hether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect; (2) [w]hether there is a difference in the quality or character, as well as the degree, of use; and (3) [w]hether the current use is different in kind in its effect on the neighborhood.” Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973) (internal quotations and citations omitted). See also Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966).

If the results of this inquiry are favorable to a proposed use, Section 6 governs and protects such uses. However, if the Powers Test reveals a change in the nonconformity, the use may persist only if it is allowed by, and consistent with, provisions within the local bylaw. Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 729 (2005); Blasco, 31 Mass. App. Ct. at 33. Finally, if consistent with the local bylaw, a special permit allowing the change in nonconforming use may issue only after the local board makes a finding that, in the words of Sections 6, the use “shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” [Note 19]

Nonconforming Uses Under Section 6.

As discussed above, the Powers Test comprises the first step in determining the validity of the Addition in context of Section 6. Plaintiff asserts, unilaterally, that the Addition is not a change in the nonconforming use; however, this is a question for the ZBA and one that remains unanswered. As such, on remand the ZBA must also address whether the Addition is a change in the nonconforming use of the Garage, and Plaintiff must file an application for a special permit in this regard.

If the ZBA finds that: (1) the use reflects the nature and purpose of the preexisting use when the By-law took effect; (2) there is no difference in the quality of character and degree of use; and (3) that the current use is not different in kind in its effect on the neighborhood, then it shall allow Plaintiff’s special permit for the Addition. However, if this test reveals a change in the nonconforming use, such use may only continue if allowed by, and consistent with, the By-law, and upon a finding by the ZBA that it “shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.”

Nonconforming Uses Under the By-law.

As discussed, supra, in the event that the ZBA determines that the Addition is a change to the Garage’s pre-existing nonconforming use, the Addition’s use will only be allowed if determined to be consistent with the By-law, as Section 6 serves as a floor and “prescribes the minimum of tolerance that must be accorded to nonconforming uses . . . .” Nichols v. Board of Zoning Appeal of Cambridge, 26 Mass. App. Ct. 631 , 632-633 (1988) (quoting Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207 , 209 (1946)). Cities and towns may, however, provide rights beyond those afforded under Section 6. See id.; Rourke v. Rothman, 64 Mass. App. Ct. 599 , 605, superceded on other grounds, Rourke v. Rothman, 448 Mass. 190 (2007). Two separate issues arise in this context. The first involves the storage of boats (versus motor vehicles); the second relates to the storage of six motor vehicles in the Addition (versus the Garage).

The 2006 Amendment is ambiguous relative to the storage of boats. There is no provision related to the storage of boats in a garage but there are provisions relative to the storage of boats in a yard. Section 145-23(C)(1) states that “[n]o front yard shall be used for the open storage of boats . . . .”). Subsection H of section 145-26 (Off-street parking required facilities) states that in residential districts “no boat over 26 feet in length shall be parked or stored within 10 feet of any structure or within four feet of any property line, and no boat shall be parked or stored so as to occupy any part of an area required for off-street parking.” Section 145-10 of the 2006 Amendment states that “[a]ny use not listed herein [in Article IV, Use Regulations, sections 145-10 through 145-21] is prohibited.” [Note 20] Regardless, even if a boat is considered a vehicle, the storage of such boat or boats in the Addition, above six motor vehicles, exceeds both the number of vehicles allowed under the By-law (three) and the number of vehicles that are grandfathered (six).

Moreover, this is an issue of whether a boat is a vehicle under the By-law. The 2006 Amendment’s definition of a “private garage” is clear that such structures are intended to keep noncommercial motor vehicles. However, the definition of a “vehicle” is ambiguous with respect to whether it includes boats. [Note 21] The definition section of the 2006 Amendment indicates that a vehicle be motorized, which may be a characteristic of a boat. However, the 2006 Amendment also includes boats as a “recreational vehicle,” or a “vehicular, portable unit designed for travel, camping or recreational use.” The 2006 Amendment does not compare a motor vehicle to a recreational vehicle. [Note 22]

As such, there is a question whether the Addition violates section 145-44(B)(3) of the 2006 Amendment, as the use of the Addition (as is the use of the Garage) is nonconforming (i.e. the number and type of vehicles parked) and the Addition is far in excess of the maximum of 25% increase in floor area allowed. If this is indeed the case, the Addition may require a variance, in addition to the special permit which is already required by the state statute. However, if the ZBA determines that the By-law allows the Addition, and that the Addition complies with such requirement, the ZBA may issue a special permit allowing the Addition upon a finding that it “shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.”

Impact of the Agreement for Judgment on the Instant Matter.

Defendants argue that Plaintiff is barred from pursuing the construction of the Addition under the Building Permit because the Building Permit was a violation of the Agreement for Judgment. The Agreement for Judgment, however, only prohibited another application for a height variance, and this matter does not involve the application for a height variance, only a special permit. [Note 23]

Conclusion.

As a result of the foregoing, I DENY both Baldwin’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment and remand the matter to the ZBA consistent with the above. This court shall retain jurisdiction of this matter pending the outcome of the remand hearing. The ZBA shall hold such a hearing and issue a decision within sixty (60) days of the date of this decision, and the parties shall attend a status conference on Tuesday, April 27, 2010, at 10:00 A.M.

Alexander H. Sands, III

Justice

Dated: February 18, 2010