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 Inspectors refusal to revoke the Building Permit, which was appealed by Plaintiff on May 28, 2008. 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 Baldwins 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 Plaintiffs 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.
A decision of todays date (Land Court Decision 2") has been issued.
In accordance with Land Court Decision 1 and Land Court Decision 2, it is:
ORDERED and ADJUDGED that Plaintiffs Motion to Deem as Admitted, filed on June 5, 2009, is ALLOWED.
ORDERED and ADJUDGED that the Agreement for Judgment did not prohibit the issuance of the Building Permit.
ORDERED and ADJUDGED that Baldwins Motion for Summary Judgment and Plaintiffs Cross-Motion for summary Judgment are DENIED.
ORDERED and ADJUDGED that the Garage is a conforming structure.
ORDERED and ADJUDGED that the Addition is a conforming structure. [Note 1]
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED that Plaintiff and his tenants may engage in customary residential activities in the Garage and Addition.
ORDERED and ADJUDGED that 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.
ORDERED and ADJUDGED 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 2]
ORDERED and ADJUDGED that Plaintiff may not keep a boat that exceeds twenty-six feet in length in the Garage or Addition without a special permit.
ORDERED and ADJUDGED that Plaintiffs 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.
ORDERED and ADJUDGED that the only acceptable subject for a Powers test analysis is the number of vehicles present, and not the other conforming accessory uses.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED 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.
By the court. (Sands, J.)
[Note 1] In the fact section of Land Court Decision 2, this court stated that The Addition meets the By-Laws current density and dimensional requirements and is a conforming structure.
[Note 2] The total number of vehicles (cars, motorcycles, or boats) in the Garage and Addition is still limited to six.