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

On March 24, 2009, Baldwin filed her Motion for Summary Judgment. On April 21, 2009, the ZBA filed its Assent to Baldwin’s Motion for Summary Judgment, and Plaintiff filed his Cross-Motion for Summary Judgment. A hearing was held on all motions on June 15, 2009, and a decision of this court (“Land Court Decision 1”) was issued on February 18, 2010, in which this court denied both Defendants’ and Plaintiff’s Summary Judgment Motions and remanded the matter to the ZBA to determine whether the Addition is considered a change in the nonconforming use of the Garage under either the Town of Winthrop Zoning By-Laws (the “By-Law”) or G.L. c. 40A § 6, and, if so, whether such uses are substantially more detrimental to the neighborhood. Land Court Decision 1 also found that the Agreement for Judgment issued by this court on July 20, 2006 (the “Agreement for Judgment”), did not prohibit the issuance of the Building Permit. On June 28, 2010, after a remand hearing, the ZBA issued a third decision (“ZBA Decision 3”) which found that the current use of the Addition changed the nonconforming use of the Garage in quality, character and degree, and that such use was substantially more detrimental to the neighborhood than the pre-existing, grandfathered, nonconforming use. On August 24, 2010, Plaintiff filed his Second Amended Complaint, appealing ZBA Decision 3.

On December 6, 2010, a pre-trial conference was held. On April 21, 2011, a site view of Locus was taken and the trial was held at the Land Court in Boston. Post-trial briefs were filed on June 20, 2011, at which time the matter was taken under advisement. At trial, testimony for Plaintiff was given by Norma Baars (tenant at Locus), Diane Barsoti (owner of property in neighborhood), James Soper (Winthrop Building Inspector), Anne Baldwin (Defendant), John Meskell (owner of property in neighborhood), James Rudser (user of Garage), and Luigi Guarino (Plaintiff). Testimony for Baldwin was given by Sean Cassidy (owner of property in neighborhood) and Baldwin (as rebuttal witness). The parties submitted thirty-one exhibits, some in multiple counterparts.

Based on the sworn pleadings, the evidence submitted at trial and the reasonable inferences drawn therefrom, I find the following material facts:

1. Plaintiff resides at 185 Cottage Park Road, Winthrop Massachusetts (not at Locus).

2. By deed dated May 27, 2004, Plaintiff purchased Locus, which contained a single family residence, a shed and 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.

3. Prior to the Addition, the Garage was approximately 20' x 60', as shown on “Plan of Land in Winthrop, MA Belonging to: Lou Guarino” dated July 7, 2004, prepared by Albert A. Romano, Surveyor. The Garage contained six separate bays for parking motor vehicles, separated by interior walls. [Note 4] Each bay had its own door on the northerly wall of the Garage (facing Locus’ residence), opening onto the driveway. The sides and rear of the Garage are located within five feet of the side and rear lot lines. The Garage is a conforming structure. [Note 5]

4. The By-Law was first adopted in 1977 and amended in 1982, 1989, 1992, and 2006 (the “2006 Amendment”).

5. On August 16, 2004, Plaintiff applied for a variance (the “Variance”) to enlarge the Garage with a 40' x 25' addition that violated the height restriction in the By-Law. The ZBA approved the Variance on July 29, 2005. Baldwin appealed the Variance to the Land Court and the parties settled the case by entering into the Agreement for Judgment whereby Plaintiff agreed to forfeit the Variance. [Note 6] The Agreement for Judgment stated:

[u]pon annulling the decision of the Board of Appeals of the Town of Winthrop dated July 29, 2005, the Application for Variance filed by Defendants Luigi Guarino and Ann Mulvaney dated August 16, 2004, shall not be acted upon favorably (as the 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 or after July 1, 2008.

6. On October 11, 2006, Plaintiff applied for a building permit to construct the Addition, a 39 ½’ x 26' extension of the Garage’s northerly wall in conformity with the By-Law’s height restriction. 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 the By-Law’s current density and dimensional requirements and is a conforming structure.

7. On October 17, 2006, the Building Inspector issued the Building Permit for the Addition. Plaintiff completed all work on the Addition sometime in late 2007, including removing the interior walls of the Garage and replacing the six doors on the garage with two large bay doors. [Note 7]

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

9. By letter dated September 13, 2007 (the “Baldwin Letter”), Baldwin requested that the Building Inspector demand Plaintiff cease and desist any further construction on the Addition and to remove the Addition from the Garage. [Note 8] By letter dated October 3, 2007, the Building Inspector refused Baldwin’s request. Baldwin appealed the Building Inspector’s decision to the ZBA, which reversed the Building Inspector and revoked the Building Permit by a decision dated November 29, 2007 (“ZBA Decision 1”), which Plaintiff appealed to this court on December 20, 2007. [Note 9] 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].

10. A building permit was issued to Plaintiff on November 19, 2007 for renovations to an interior room in the Garage and a wood-fired stove was installed. This building permit was not appealed.

11. On remand from this court, the ZBA issued a second decision dated April 19, 2008 (“ZBA Decision 2”), which also revoked the Building Permit. The reasons for revocation were the same for both ZBA Decision 1 and ZBA Decision 2 and Plaintiff, again, appealed the decision to this court on May 28, 2008. This court issued Land Court Decision 1 on February 18, 2010.

12. On remand, as a result of Land Court Decision 1, the ZBA held a public hearing on the issue of whether the Addition is considered a change in the nonconforming use of the Garage, and issued ZBA Decision 3 on June 28, 2010. In ZBA Decision 3, the ZBA made the following findings:

(a) the uses currently being made of the garage are substantially and qualitatively different and, therefore, different in kind, than the pre-existing, non-conforming use found to exist by the Land Court;

(b) based on the noise and noxious fumes, at times, produced by the current use, hours of operation, the personal, entertainment and hobby use nature as well as other enterprises being made of the garage, all of which are completely separate from the primary use of the property for residential purposes, the current use constitutes a change-in-use that is qualitatively different and therefore a change in kind to a use that is not permitted by the zoning by-laws of the Town of Winthrop and, therefore, is not permitted on the premises; and

(c) even if a finding were made that this was not a change in kind, that the use is substantially more detrimental to the neighborhood than was the pre-existing nonconforming use, based on the unrefuted testimony of the abutters and, therefore, it would be inappropriate for the ZBA to issue a special permit with regard to the current use.

13. Plaintiff has never applied for a special permit in relation to construction of the Addition. 14. Currently, Locus is rented to Norma Baars and her husband. They use the Garage and the Addition for storage of household items such as grills, snow blowers and lawnmowers.

15. Plaintiff, along with his family and friends, parks and stores automobiles and boats in the Garage and the Addition. [Note 10] Plaintiff also uses the Garage and Addition for general storage of household items, as a workshop and for personal recreational activities, including boat building, woodworking and creation of rock sculptures. Plaintiff receives payments from a third party for storage of a Ferrari and Corvette ($100 per vehicle per month) but does not generate any revenue from his recreational activities. [Note 11]

16. Baldwin and other neighbors have testified to loud noises and odors coming from Locus due to construction of the Addition and Plaintiff’s craft activities, as well as increased motor vehicle activity in and around the Garage and Addition.

17. Since the construction of the Addition, Plaintiff has increased the number and variety of vehicles kept in the Garage. On the first day of trial, a site view was taken at Locus and the following vehicles were present: a Dodge Viper, a motorcycle, a one man row boat (built by the Plaintiff), a crew boat, an inflatable boat, and a general motor boat. The Dodge Viper was stored by a third party. Plaintiff owns each boat. At trial Plaintiff testified that he has kept more than six boats, possible up to ten, of various types and sizes, in the Garage and Addition.

18. There was testimony that indicated that the cars and motorcycle in the Garage are accessed on a regular basis but the boats are generally accessed a few times a year – when they are taken out in the spring, when they are put in during the fall and some incidental times for basic maintenance.

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Plaintiff contends that ZBA Decision 3, which found that Plaintiff’s use of the Garage and Addition constitute a change in the nonconforming use of the Garage, and that such change was substantially more detrimental to the neighborhood, is legally untenable, arbitrary and capricious. He urges this court to find that the current use of the Garage and Addition satisfies each prong of the Powers test, and therefore hold that the use is protected under both G. L. c. 40A, § 6 and the By-Law. [Note 12] In the alternative, Plaintiff urges this court to hold that the uses of the Garage and Addition, even if considered a change from the pre-existing nonconforming use, comply with the By-Law, i.e. the new uses are conforming uses and may be allowed to continue as such. Defendants, through their briefs, motions and arguments at trial, urge this court to uphold the findings of facts and rulings of law found in ZBA Decision 3, the final decision on remand, which found that the current use of the Garage and Addition fails each prong of the Powers test, is not permitted by the By-Law and is also substantially more detrimental to the neighborhood that the prior nonconforming use. I shall examine each of these issues in turn.

The relevant Massachusetts law is G. L. c. 40A § 6, which states:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued 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 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 the 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 relevant By-Law, contained in the 2006 Amendment, is as follows:

Article V (Dimensional Requirements), § 145-23. General Regulations.

...

C. Yard requirements for all districts...

...

(5) An accessory building attached to the 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.

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. Nonconforming uses, structures and lots.

...

B. Extension and alteration.

...

(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.

...

D. Changes.

(1) Any 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 BA.

In an appeal brought under G. L. c. 40A, § 17, this court is required to hear the case de novo, to make factual findings and to determine the legal validity of the ZBA’s decision based upon those findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953)); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). No evidentiary weight shall be given to the ZBA’s previous findings. Josephs, 362 Mass. at 295. The function of this court on appeal, based on its de novo factual findings, is “to ascertain whether the reasons given by the [board] had substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary actions or veils for reasons not related to the purposes of the zoning law.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. 308, 312 (1973). In order for the ZBA’s decision to be upheld, the ZBA must have acted “fairly and reasonably on the evidence presented,” and have “set forth clearly the reason or reasons for its decision.” Id. Although this case was heard de novo, such “judicial review is nevertheless circumscribed: the decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts, 429 Mass. at 486 (internal citations omitted). To determine whether the ZBA’s decision was “based on a legally untenable ground,” this court must determine whether its decision was decided,

Britton v. Zoning Bd. Of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). In order for the court to determine whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, [whether] any rational board could [reach the same conclusion].” Id. at 74. This analysis is “highly deferential.” Id. While a “highly deferential bow [is given] to local control over community planning,” deference is not analogous to abdication, hence, the ZBA’s judgment must be grounded in a sound factual basis. Britton, 59 Mass. App. at 73-75. It is this court’s prerogative to annul the ZBA’s decision if it is found to be arbitrary and capricious. See generally, Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). If the court finds otherwise, the ZBA’s decision must be upheld. Roberts, 429 Mass. at 486.

G. L. c. 40A § 6 is applicable only to changes and extensions of nonconforming uses. [Note 13] Hence, any use of the Garage and Addition which is a conforming use (even if it was not pre-existing) will not be subject to the Powers test and will be permitted to continue, pursuant to any applicable regulations. On the other hand, any current use that is nonconforming and which was not grandfathered in, will be subject to the Powers test and subsequent analysis, and, depending on the outcome of the analysis, may or may not be allowed to continue. First, I must address each of the current uses, and if any are conforming accessory uses for the Garage and Addition under the By-Law, they will be allowed to continue. Plaintiff will also be allowed to continue the pre-existing nonconforming use. I must also determine how the By-Law’s restrictive use language, “[A]ny use not listed herein is prohibited,” is to be interpreted in reference to common garage use in Winthrop. By-Law § 145-10.

Pre-Existing Use

The first issue is whether Plaintiff shall be allowed to continue the pre-existing nonconforming use of the Garage within the Addition. By-Law § 145-44(B)(3) states, “Any nonconforming accessory use of a portion of a structure...may be extended up to a maximum of 25% of the floor area of the existing structure.” [Note 14] I interpret this provision as stating that any nonconforming use of a structure, that does not encompass the entire floor area of that structure, may not be extended within the structure by more than twenty-five percent of its current floor space. [Note 15] Since the nonconforming use already encompasses 100% of the Garage, any relocation of the use into the Addition will subtract from, not add to, the floor area taken up in the Garage; no extension of use will take place in the original structure, (i.e. the Garage). The nonconforming use, therefore, is not expanding in substance, it is being relocated in form, from the Garage into the Addition, a process not prohibited by the By-Law. This outcome is also realistic, as it would be impractical to restrict the storage of these vehicles to the Garage when the Addition, as a conforming structure, is completely and wholly attached. Both the Garage and the Addition are under a common roof, share the same floor and are not delineated by any barrier. Thus, I find that Plaintiff may store up to six cars and/or motorcycles, for personal reasons or for rental income, in the Garage and I will also allow them to be stored in the Addition. It should be noted, however, that the number of vehicles in the Garage and Addition may not exceed six. Plaintiff may not perform maintenance work on any vehicles, as no evidence was introduced that maintenance was part of the grandfathered nonconforming use, except as provided for in this decision.

Accessory Use

This court agrees with Plaintiff that the Garage and Addition are accessory buildings to the residence at Locus, and By-Law § 145-21 permits accessory uses in a residential district. Although By-Law § 145-10 states “...[a]ny use not listed herein is prohibited,” many By-Law provisions use either explicit language to prohibit certain uses or inclusive language that is indicative of non-exhaustive listings of permitted uses, resulting in an apparent contradiction. For example, By-Law § 145-20 states, “[a]ccessory uses shall include the following.” (Emphasis added). This language indicates a non-exhaustive list of uses. [Note 16] A basic tenet of statutory construction demands that a law “be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.” Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136 , 140 (1998) (internal citations omitted). Where, as here, a law contains seemingly conflicting language, a court must “interpret...[it], if possible, so ‘as to make it an effectual [law] in harmony with common sense and reason.’” Massachusetts Commn. Against Discrimination v. Liberty Mut. Ins. Co., . 371 Mass. 186 , 190 (1976) (citing Atlas Distib. Co. v. Alcoholic Beverages Control Commn., 304 Mass. 408 , 414 (1968). As such, I read the By-Law as prohibiting uses not listed, except and unless a specific provision indicates otherwise. This approach is consistent with the rules of statutory construction and is evident in this situation. Not only does the specific language of By-Law § 145-20 lead to this conclusion, but the purpose of the provision, to spell out acceptable accessory uses, by its nature could not be exhaustive, lest the drafters attempt to define thousands of acceptable accessory uses in a residential district. Therefore, there will be acceptable, conforming, accessory uses for the Garage and Addition that are not expressed in the By-Law.

Under Massachusetts case law, an accessory use must be “customarily incidental” to the primary use. Town of Harvard v. Maxant, 360 Mass. 432 , 438-440 (1971). If, as here, the primary use of Locus is a single family residence, the accessory use must be “either one that is necessary or commonly to be expected” with such a residence. [Note 17] Paolo v. Town of Seekonk, 11 Mass. L. Rptr. 767 (2000), (citing Gallagher v. Bd. of Appeals of Acton, 44 Mass. App. Ct. 906 , 907 (1997)). “Incidental” infers the notion of subordination to the primary use, along with a reasonable relation to such use. Maxant, 360 Mass. at 439. There is no dispute that storage of items such as snow blowers, lawnmowers, grills and other minor household items is customary and incidental for garages. Baldwin and other neighbors to Locus testified that they engage in such use themselves and that it is a common use in the town of Winthrop. As a result, I find that Plaintiff and his tenants may engage in customary residential activities in the Garage and Addition.

As we have already decided, Plaintiff is allowed to keep up to six cars and/or motorcycles in the Garage and Addition because of the pre-existing nonconforming use. The next use issue is whether or not Plaintiff may perform basic maintenance and repairs on these vehicles. Simple maintenance work on vehicles is generally recognized as a staple of customary garage usage throughout the Commonwealth. This court can think of no garage activities more typical and more related to vehicle storage and ownership than basic vehicle upkeep, and no evidence has been presented to the contrary. The By-Law’s definition of “Garage, Private” also supports this position:

The By-Law clearly contemplates that minor vehicle repair will be performed in Winthrop garages, and, recognizing that fact, took steps to limit this acceptable use to non-commercial activities. Therefore, another precept of statutory construction comes to light, inclusio unius est exclusio alterius. i.e. that which is expressed is so set over by way of contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have the opposite treatment. Harborview Residences’ Comm., Inc. v. Quincy Hous. Authy., 368 Mass. 425 , 432 (1975); Somerset Importers, Ltd. v. Alcoholic Bev. Control Commn, 28 Mass. App. Ct. 381 , 387 (1990). Thus, since the By-Law so patently prohibits service or repair of vehicles in garages for commercial purposes, and the By-Law remains utterly silent to such use in non-commercial or residential purposes, we can infer that the By-Law permits, as a conforming use, minor vehicle repair and maintenance in garages as long as such use is not for business or industry purposes. However, as previously indicated, maintenance work was not part of the grandfathered nonconformity, and therefore, if Plaintiff wishes to engage in conforming maintenance work on vehicles within the Garage and Addition, that use must comply with the By-Law. By-Law § 145-18(B)(1) limits the amount of vehicles in a garage to three. In order for Plaintiff to lawfully engage in conforming accessory maintenance, I find that the maintenance work may be performed on no more than three vehicles (without a special permit) because the other three vehicles are permitted, as well as restricted, by the pre-existing use, which did not include maintenance. In effect, if six vehicles are stored in the Garage and Addition, Plaintiff must choose which three vehicles he will subject to maintenance, and the others must be taken off Locus for any work required. The specific vehicles chosen for maintenance should not be chosen and changed on a whim. This is a pragmatic and reasonable interpretation of the By-Law. Limiting the number of vehicles which may be subjected to conforming accessory uses to three, will bring the pre-existing nonconforming use closer to conformity with the By-Law.

As to the storage of boats, it appears that, under the By-Law, a boat is a vehicle, [Note 18] and therefore boats will be permitted to be stored in the Garage and Addition as of right, without regard to any accessory use analysis. However, since they are not part of the pre-existing nonconformity, they are also subject to By-Law § 145-18(B)(1), which limits garages to a total of “three non-commercial vehicles.” Hence, I find that no more than three boats may be kept in the Garage and Addition because they are “noncommercial vehicles” under the By-Law and any more than three would be a violation. [Note 19] Also, each boat kept may be chosen as a vehicle subject to maintenance, but maintenance may be performed on three chosen vehicles, no more.

Lastly, on the issue of boats, it is reasonable to limit the size of boats that may be kept in the Garage and Addition to twenty-six feet. The By-Law gives very little insight as to the size and scope of boats that may be present on a Residential A property, but, By-Law § 145-23 refers to boats of more than twenty-six feet in length as being prohibited in certain circumstances. [Note 20] I find, as a result, that Plaintiff may not keep a boat that exceeds twenty-six feet in length in the Garage or Addition without a special permit. There is no evidence that Plaintiff has ever kept a boat that exceeded this length but, as the record indicates, Plaintiff keeps a wide variety of boats and I believe that it is prudent to restrict the size of these boats. This does not limit the type of boat permitted. Any type of boat that is under twenty-six feet is permitted unless otherwise prohibited by the By-Law.

Finally, it would appear that garages have been and typically are prime places for craft and hobby projects as accessories to residential use and they are “commonly to be expected” with such a residence. See Paolo, 11 Mass. L. Rptr. at 767 (citing Gallagher, 44 Mass. App. at 907) (discussing the nature of conforming accessory uses). Hobby and recreational activities such as woodworking, rock sculpting, painting, etc., are accessory uses because individual creativity often finds an outlet at and around a residence, whether it be building a cabinet, painting a picture, sewing a quilt or creating a sculpture, and no evidence to the contrary has been presented. Consequently, I find that Plaintiff’s woodworking and rock sculpting activities are customary and incidental to the primary use of a residence and therefore, they are conforming accessory uses which may continue. Moreover, the building of a wooden rowboat in the Garage is also a permitted accessory use, as this activity is nothing more than complex woodworking, provided that such a boat does not increase the number of vehicles stored in the Garage and Addition beyond six. Furthermore, any new boat built will be considered a vehicle, and it will be subject to all vehicle and boat restrictions set forth in this decision and the By-Law. In pursuit of the hobby and craft accessory uses herein cited, it is possible that Plaintiff may exceed the proper scope of the accessory use and, if so, he may be subject to applicable repercussions. [Note 21] However, there is no evidence of such excessive scope presented. [Note 22]

Extension of Nonconforming Use and New Nonconforming Use

This decision has identified and discussed the conforming uses of the Garage and Addition which will be allowed to continue subject to the restrictions in this decision and the By-Law, as well as the pre-existing nonconforming uses which will be allowed to continue as before. Now, I must analyze what uses, if any, of the Garage and Addition are nonconforming and whether these uses constitute an extension or alteration of the pre-existing nonconforming use, or whether they are a new nonconforming use.

The only remaining use at issue to discuss is the presence of greater than six vehicles in the Garage and Addition. There is evidence that as many as ten boats, five cars, and a motorcycle have been present at the same time. The parties do not dispute the uses of the Garage at the time the By-Law took effect. That use, as described above, was the parking of up to five cars and one motorcycle. As discussed, supra, no more than three boats may be kept in the Garage and Addition, and they are permitted only pursuant to the By-Law. As a result, if more than three boats are present, then it is not an alteration or extension of a pre-existing nonconforming use, it is a new nonconforming use. New nonconforming uses are completely prohibited without a special permit from the permit granting authority, here the ZBA. [Note 23] On the other hand, if no boats (or up to three boats) are present, yet the total number of vehicles exceeds six, then the use shall be considered an alteration or extension of the pre-existing nonconformity. For example, if Plaintiff stores zero boats, six cars and one motorcycle, it is not a new nonconforming use, but rather an alteration or extension of a prior nonconforming use. It is this situation that G. L. c. 40A § 6 and the Powers test, were meant to address.

In the instant action, however, though there is evidence that as many as ten boats have been present, there is no evidence on the record to indicate that Plaintiff has kept more cars and motorcycles in the Garage and Addition than permitted by the pre-existing nonconforming use. To the contrary, it appears that the number of cars and motorcycles has diminished to three, only one being in the Garage on the day this court took a site view. The ZBA has made it clear that it believes that Plaintiff’s activities, taken as a whole, are more detrimental to the neighborhood. But it is clear to this court that much of their analysis in ZBA Decision 3 was not based on acceptable criteria. [Note 24] Therefore, I find that the only acceptable subject for a Powers test analysis is the number of vehicles present, and not the other conforming accessory uses. However, as I am to determine this case de novo I find that adding a single vehicle (whether it be a boat, car, motor-home, or airplane), which would bring the total above six, would appear to be a per se change in the nature, degree, character and kind of use and will be considered substantially more detrimental to the neighborhood. As such, such change in use would fail the Powers test, will not be protected by G. L. c. 40A § 6, and will not be eligible for a special permit.

Conclusion

As a result of the foregoing, I find that ZBA Decision 3 is based on legally untenable grounds and is arbitrary and capricious, in all respects, except the determination that the number of vehicles, over six, is substantially more detrimental to the neighborhood. The simple facts in this case indicate that Plaintiff was engaging in activities that are either protected pre-existing nonconforming uses or are customary and incidental to the primary residence. Plaintiff shall be allowed to continue his current woodworking and rocksculpting activities, the pre-existing nonconforming use, and the storage of three boats. However, no more than six vehicles shall be allowed to be stored in the Garage and Addition, and only three vehicles may be subject to maintenance.

Judgment to enter accordingly.