MISC 90918

December 28, 1978

Randall, C. J.


Plaintiffs seek a declaratory judgment that they are entitled to use the premises located at 234 Monsignor O'Brien Highway, Cambridge, Massachusetts (locus) including an addition constructed in the spring of 1978 for the sale and repair of used cars including repairs involving the use of an automobile lift and beam.

Trial was held on November 1, 1978. Nine witnesses testified and fourteen exhibits, incorporated herein for the purpose of any appeal, were introduced. A view of the locus and the surrounding neighborhood was taken immediately following the trial with the attorneys for all parties present.

The locus consists of a small parcel of land facing north on Monsignor O'Brien Highway in Cambridge. This road is a six lane, high speed highway, separated in the middle by a cement divider. It runs from the bridge crossing the Charles west to Lechmere Square and on to the Somerville line at the railroad bridge. On the north side of Monsignor O'Brien Highway the area is heavily industrial. On the south side, where locus is found, it is almost entirely commercial. One house is sideways to O'Brien Highway, facing Ciarappa Street. Several other houses face Winter Street but their back yards back up to the south side of Monsignor O'Brien Highway. It would be difficult to envisage an area more commercial and industrial in character than this area appears to be. The locus itself contains two small wood frame houses fronting on Winter Street which runs roughly parallel to Monsignor O'Brien Highway; to the rear of the two houses are the two car garages with addition facing Monsignor O'Brien Highway to the north. Between the garages and this highway is a small area where a few automobiles may be parked. For many years the area in which locus is found was zoned as a business district. In June of 1978 the locus was part of a small section between Winter Street and O'Brien Highway which was rezoned for general residence.

Plaintiff's acquired locus in 1973, and since approximately September 1, 1973 Mr. Bertolino has conducted a used car sales and repair business there. The dispute in this case stems from Mr. Bertolino's desire to utilize a lift, beam and chain and addition to his building in connection with his car repair business.

Plaintiffs filed an application for a building permit (Exhibit No. 9) to permit the construction of an addition to the existing garage building. Plans filed with this application indicate that a lift for automobiles and a beam were to be a part thereof. On March 14, 1978 a building permit was issued granting plaintiffs' contractor permission to erect an "addition to existing building as per plans." Exhibit No. 10. Consequently, the addition was constructed and the beam and the lift were installed.

For some reason not quite clear, perhaps as a result of a complaint, the Cambridge building commissioner informed Mr. Bertolino by letter dated April 7, 1978 that the installation of a lift in the addition is a garage use which required a special permit from the Board of Zoning Appeal and ordered him not to have the lift installed. When plaintiffs received this letter on April 10, 1978 the lift had been partially installed, the foundation for the building had been laid, and the walls had been erected. Upon receipt of the letter, Mr. Bertolino went at once to the city hall to the building commissioner's office. The application for the building permit was retrieved and one J.F. Conway, a building commissioner, spoke with Mr. Bertolino. Under the heading "Nature and Character of Proposed Work" were the words "Addition to existing building according to plan filed." Mr. Conway at that time in early April long after the building permit had been issued added the words "For sale of new or used cars or motorcycles or rental agency - not to be used for major automobile repairs. No lift approved. J. F. Conway."

From this letter it would appear that the basic disagreement between the parties then was the extent of the plaintiffs' existing nonconforming use, specifically, whether or not it embraced the right to use locus for major automobile repairs. In this letter the city objects to a specific use of the addition not to the addition itself. The statement in the April 7, 1978 letter that "the installation of a 'lift' in your new addition to the existing garage is a garage use and therefore requires a special permit from the Board of Zoning Appeal" reflects the defendant's then position that plaintiffs' nonconforming use is limited to uses specified in art. IV, §2 (5), §4.35m of the Cambridge Zoning Ordinance then in effect (exhibit No. 5), that it does not extend to the uses encompassed by §4.37c, automotive repair garage, and that the mere installation of a lift changes the classification of the use from §4.35m to §4.37c of the ordinance. [Note 1] The Court disagrees.

Locus has been used since 1919 for the repair and sale of used cars. When it was acquired by the plaintiffs in 1973 it was zoned business A. [Note 2] A permitted use in a business A zone under the zoning ordinance then in effect included

Sales place for new or used cars conducted entirely within a building, rental agency for autos, trailers, motorcycles, conducted entirely within a building; provided no major repairs are made. Exhibit No. 12, art. IV, §2(5) (n).

A use as an automotive repair garage was allowed in a business A district only with a special permit. Exhibit No. 12, art. IV, §2(7) (c). Thus when plaintiffs purchased locus in 1973, under the Business A zoning then in effect, non-major repairs were permitted to be performed as of right but the performance of major repairs required a special permit.

However, the plaintiffs were continuing a use established long before the existence of the Business A zone in effect in 1973. They are not limited to the use authorized by art. IV, §2 (5) (n), or the old zoning ordinance because they have a protected noncon- forming use. This is evidenced by plaintiffs' certificate of occupancy dated December 31, 1974 (Exhibit No. 8) which clearly indicates that while locus is located within a business A zone, there is an established nonconforming use. The certificate issued by the building department of defendant City states that the premises are approved for "Continued use of auto-repair shop which was established in 1922 and as a used car lot." The Court interprets this use designation, "auto-repair shop," to authorize all types of repairs commonly performed in such an establishment. This in turn, would be equivalent to the classification found in §2(7) (c), automotive repair garage. Thus plaintiffs are not limited to the performance of non-major repairs.

Even if the Court were to rule otherwise and find that major repairs cannot be made at the locus (and the term major repair is not defined in Exhibit 12, the Cambridge Zoning Ordinance in effect through September 25, 1977 or Exhibit 5, the present zoning ordinance), the mere installation of a lift would not change the classification of the use from §2(5) (n) to §2(7) (c) of the ordinance. Both a lift and a beam and chain are devices which can be used to jack up a car for minor as well as major repairs. For example, either could be used to raise a car while the tires are changed. The Court concludes the use of both a lift and a beam and chain are consistent with the use of locus for minor car repairs as well as use for major repairs. They are consistent with the use of locus for the sale of used cars as they enable the undersides of cars to be more easily inspected.

While the defendant in its April 7, 1978 letter to plaintiffs appeared to object only to the lift mechanism, not to the addition itself, the defendant, in its brief, now attacks the legality of the very existence of the latter structure. Defendant argues the addition is an extension of plaintiffs' nonconforming use and as such requires, under G. L. c. 40A, §6 and §8 of the present zoning ordinance (Exhibit No. 5), "a finding by [the board of zoning appeals] that such...extension...shall not be substantially more detrimental than the existing nonconforming use to the neighborhood." The Court disagrees.

Prior to the June 1978 rezoning of locus from business A to general residential and thus when plaintiffs applied for a building permit to construct this addition, plaintiffs' use of locus was only partially nonconforming. Plaintiffs sold cars, made minor repairs to cars, and performed major repairs. The first two uses of locus were then permitted as of right. See exhibit 12, art. IV, §2(5) (n); exhibit 5, §4.35m; and page 5 of this decision. The Court has already concluded that the construction of the addition and the installation of the lift and beam and chain are consistent with the use of locus for the sale and minor repair of used cars. Hence, the addition and installation of the lift, beam and chain authorized by the building permit issued on March 14, 1978 was not an extension of a nonconforming use within the meaning of c. 40A, §6.

The question remains whether major repairs may be performed in the new addition. It is patently absurd that major repairs be allowed as an existing nonconforming use in one portion of a building and be prohibited a few feet away within the same building. It is inconceivable what zoning objective can be accomplished by such a result, and the Court concludes the addition and apparatus therein may be used for major automotive repairs.

Plaintiffs have submitted 11 requests for rulings.

Numbers 1, 2, 3, which may or may not be correct statements of law in the abstract, are framed in such a generalized manner that their application to this particular action is left to conjecture. For this reason they are denied. Number 4 is denied because its reference is not clear. Numbers 5, 6, 10 and 11 are granted. As the Court declines to pass on the validity of the Cambridge Zoning Ordinance for the reason stated in note 2, the Court does not address number 7. With respect to number 8, the Court finds that the installation of the lift and chain are consistent with plaintiffs' use of locus for the sale and minor repair of used cars. The Court does not rest its decision on the basis set forth in number 9 and therefore denies number 9.

Defendant has submitted twenty-eight requests for rulings. Numbers 1, 2, 4, 7, 8, 9, 18, 23 are granted. Number 3 is denied because the use of locus was only partially nonconforming. Numbers 5, 6, 11, 13, 25, 26 fail to recognize the conforming aspects of plaintiffs' use of locus and are therefore denied. Numbers 10, 12, 14, 15, 17, 19, 20, 21, 22, 24 are denied. With respect to number 16 the Court notes that while plaintiffs have not exhausted all administrative remedies available to them, this failure does not affect the Court's disposition of this case. The relevance of numbers 27 and 28 is left to conjecture and therefore they are denied.

Judgment accordingly.


[Note 1] The defendant appears to have retreated from this position in its request for rulings #2. However, in order to avoid any uncertainty over the extent of plaintiffs' existing nonconforming use the Court will consider whether or not plaintiffs' nonconforming use includes the right to use locus for major automotive repairs.

[Note 2] As has been pointed out on page 2 herein locus was rezoned for residential use by amendment on June 12, 1978. Much effort at the trial and the view was aimed at proving whether or not this classification of locus for residential purposes is arbitrary and irrational in view of the commercial and industrial character of the neighborhood. However, as plaintiffs are not affected by the amendment since plaintiffs' nonconforming use is protected under c. 40A, §6, the Court needs not address this question.