MISC 120491

April 25, 1988

Barnstable, ss.



The complaint in this matter was filed on July 21, 1986 under the provisions of G.L. c. 231A, §1 et seq., c. 185, §1 (j 1/2) and c. 240, §14A. The plaintiff alleges that the Zoning By-law of the Town of Chatham is invalid insofar as it purports to place the Inn at 70 Queen Anne Road, Chatham and an adjacent plot of land used by the Inn as tennis courts in a residential district and insofar as it requires the plaintiff to obtain a special permit to extend or alter a nonconforming use.

A trial was held on September 21, 30 and October 23, 1987 at the Land Court at which a stenographer was sworn to record and transcribe the testimony. Thirteen witnesses testified and twenty-seven exhibits were introduced into evidence, all of which are incorporated herein for the purposes of any appeal. A view of the property was taken in the presence of counsel on October 23, 1987.

On all of the evidence, I find as follows:

1. Since the early 1900's, an inn has been operated at 70 Queen Anne Road in Chatham. In 1972, Guenther Weinkopf purchased the inn and incorporated it as the Queen Anne Inn, Inc. ("plaintiff").

2. The Town of Chatham adopted a zoning by-law on February 15, 1954. As a result of which, the Inn was and is now located in a residential zone. The residential zone in which it is located is adjacent to two business zones. The line dividing the zones is the road on which the Inn is situated.

3. In 1984, the plaintiff entered into a fifty-year lease agreement for land, Lot B-1 off Oyster Pond Lane ("locus"), abutting the Queen Anne Inn.

4. The locus had been occupied by a warehouse used for auto and truck storage and was rundown and overgrown with weeds. As the locus was and is zoned residential, this warehouse was also a nonconforming use.

5. On October 26, 1984, the plaintiff petitioned the Chatham Board of Appeals for a special permit to change the nonconforming use of the locus from auto and truck storage to four tennis courts.

6. The plaintiff was heard on this petition on November 28, 1984. On December 12, 1984, the Zoning Board of Appeals granted a special permit under §§6.42(b) and 1.42 of the Chatham Zoning By-law with three conditions attached: the number of courts was restricted to three; no artificial lights were to be used; and the tennis courts were only to be used by registered guests of the Queen Anne Inn.

7. On February 5, 1985, the plaintiff and the owner of the locus entered into a written lease agreement. Pursuant to this agreement, the plaintiff demolished the warehouse and constructed three tennis courts.

8. In the spring of 1985, the plaintiff hired both a director of the tennis facilities and a professional tennis instructor. Letters were then sent to local year-round and summer residents referring to a "tennis club" in which, for a reasonable fee, the tennis courts could be used by these residents along with overnight guests of the Inn. The intention of the Inn was to limit the use of the courts to forty families or one hundred individual users plus overnight guests. This seasonal membership and use of the tennis courts by residents of Chatham has continued to date whereby the residents are billed by the Inn for use of the courts, tennis lessons and any other facilities of the Inn.

9. The assistant zoning agent, Margo L. Fenn, of the Town of Chatham ruled that under the conditions of the special permit, the tennis courts could only be used by overnight guests. The plaintiff filed a petition with the Board of Appeals on May 21, 1986 to appeal from that decision on April 28, 1986 and, in the alternative, requested that a special permit issue allowing persons other than overnight guests the use of the tennis courts.

10. On June 27, 1986, the Board of Appeals held an open meeting and voted to deny both the appeal and the special permit. The Town Clerk was notified by a letter dated July 3, 1986.

11. Section 1.3 of the Chatham Zoning By-law prohibits commercial operation of tennis courts. A single tennis court is allowed as an accessory use to a primary residence in residential zones.

The plaintiff has asked this Court to rule that the placement of the Queen Anne Inn property and the locus in a residential zone in 1954 be invalidated as spot zoning. The plaintiff alleges that the Town in 1954 acted in an arbitrary and capricious manner, without a reasonable basis in so placing the Inn in this residential zone.

Clearly, this is not the case. The Inn is surrounded on three sides by residential property and the boundary line of the zoning district follows the road fronting the property. The Chatham zoning map (Exhibit 2) indicates more than adequate size to the zoning districts. The plaintiff has failed to introduce any evidence to support an allegation of spot zoning. The law acknowledges the Inn as a pre-existing nonconforming use and as such it may continue its operation as an Inn.

The Queen Anne Inn presently advertises as "A Cape Cod Resort" where guests may relax in spacious guest rooms and dine in the "Earl of Chatham" restaurant, where excellent cuisine is served and advance dinner reservations are suggested. As the owner testified, the Inn has been substantially improved, is well respected in its field and operates at a high occupancy level. Furthermore, the Inn has received special permits from the Town of Chatham to extend the nonconforming nature of the Inn by adding additional facilities. I find and rule that this is not a case of spot zoning where the Inn or the locus has been singled out or discriminated against by the Town of Chatham.

The plaintiff has, in the alternative, requested from this Court a declaratory judgment as to the interpretation of the term "registered guest of the Queen Anne Inn."

The December 12, 1984 sets forth the condition that the "use of the tennis courts be limited to registered guests of the Queen Anne Inn." The plaintiff contends that the members of the tennis club register with the hotel to use the tennis courts and other facilities such as the bar and dining room. The plaintiff further contends that the term "registered guest" as used in the resort hotel industry is not the same as "overnight guest."

This Court takes judicial notice of G.L. c. 140, §27 as set forth below.

§27. Register; Penalty

Every innholder . . . shall keep or cause to be kept, in permanent form, a register in which shall be recorded the true name . . . and the residence of every person engaging or occupying a private room averaging less than four hundred square feet floor area . . . for any period of the day or night in any part of the premises controlled by the licensee, together with a true and accurate record of the room assigned to such person and of the day and hour when such room is assigned. . . .

Based on this statute, I find the July 3, 1986 interpretation of the Zoning Board of Appeals was correct in stating that "registered guests of the Queen Anne Inn" means "such persons who have registered primarily for room accommodations at the Inn, taken possession of the room, and not relinquished such possession."

In the alternative, the plaintiff has asked that this Court annul the decision of July 3, 1986 by the Zoning Board of Appeals unanimously denying the requested permit to allow expansion of the nonconforming Inn use to include use of the tennis courts by forty families as being in excess of its authority, arbitrary and capricious, and in failing to set forth reasons for its decision. The decision denying the requested permit sets forth the following:

The impact of such outside use by such additional persons was deemed to be substantially more detrimental to the quiet residential neighborhood as pointed out by neighborhood spokesmen. The Board recognizes the need for recreational facilities as pointed out by the tennis participants, but does not believe that the intent and purpose of the Bylaw is to allow public or "club" type tennis use in a highly developed residential zone.

To the contrary of the plaintiff's assertion, the July 3, 1986 decision shows concern over the impact of an additional forty families' use of the tennis courts in a residential zone. This unanimous decision denying the requested permit is not arbitrary and capricious in its conclusion that while a need may exist for public use of these tennis courts, the use in this residential area would be substantially more detrimental than the use solely by overnight guests of the Inn.

Finally, the plaintiff seeks to invalidate the requirement that a special permit is necessary to alter or extend a nonconforming use in the Town of Chatham. In this instance, the plaintiff is attempting to challenge the 1984 decision allowing the special permit subject to three conditions. The 1984 special permit which allowed the extension, change or alteration of the former storage facility into tennis courts subject to conditions which were agreeable to the plaintiff was within the discretion of the Zoning Board of Appeals. The current assertion by the plaintiff challenges the authority of the Zoning Board of Appeals to grant permits subject to conditions. G.L. c. 40A, §17 mandates that such an appeal be made within twenty days of the decision. Iodice v. Newton, 397 Mass. 329 , 334 (1986).

Regardless of the form, the plaintiff's action is an appeal within the meaning of G.L. c. 40A, §17 and it must fail because it was not timely brought. Our decision is consistent with previous decisions of this court and the Appeals Court recognizing that the Legislature intended that affected parties should be able to rely on the decisions of board of appeals and special permit authorities which have not been challenged within a limited period. See Capone v. Zonin Bd. of Appeals of Fitchburg, 389 Mass. 617 , 623-624 1983. Elder Care Serve., Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480 (1984); Iodice at 334.

Based upon the plaintiff's assertions as discussed above, I rule that the Board of Appeals was within its authority in issuing the 1984 special permit subject to the three conditions and in issuing the denial of the second special permit to extend the use to forty families. Furthermore, the Zoning Board of Appeals was correct in its interpretation of the term "registered guest." I further rule that the plaintiff's attempt to challenge the 1984 special permit by challenging the validity of the By-law is without merit and is further barred by the statute of limitations and must be denied.

Judgment accordingly.