MISC 124348

December 20, 1988

Barnstable, ss.



On August 24, 1987, Howard L. Gamsey ("Plaintiff") commenced this action seeking a determination, pursuant to G.L. c. 240, §14A and c. 231A, of the validity and applicability of section 5.97 of the Chatham Zoning Bylaw ("Bylaw") with regard to a planned conversion of certain property owned by him in Chatham, Massachusetts, from a motel to a number of condominiums.

A trial was held at the Land Court on August 19, 1988, at which a stenographer was appointed to record and transcribe the testimony. Two witnesses, Howard and Judith Gamsey, testified and five exhibits were offered into evidence.

The Court finds the following facts:

1. The Plaintiff is the owner of a parcel of real estate located on Route 28, Orleans Road, in Chatham, Massachusetts, commonly referred to as the Pleasant Bay Village Resort Motel ("Motel"). The Plaintiff and his family have operated the Motel since 1953.

2. The Motel has operated as a valid, pre-existing, nonconforming use since the Town of Chatham rezoned the district from limited business to residential use in 1984.

3. The Motel is operated seasonally from May 1 to October 31, with July and August being the peak months of occupancy. It is situated on approximately 5.5 acres of land and consists of some 58 units, 38 of which are traditional motel rooms and 20 of which are efficiencies containing separate kitchen, bedroom and bathroom facilities. Two wells and about twenty individual septic systems serve the respective water, drainage and sewage needs of the Motel. The septic systems are cleaned annually and the wells are upgraded as necessary.

4. Some time in 1986, the Plaintiff sent a letter to the Chatham Building Inspector, Arthur R. Child ("Child"), inquiring as to whether or not section 5.97 of the By law would apply to a conversion of the Motel units to condominium-style ownership. The conversion proposed by the Plaintiff does not appear to include any structural changes and would encompass the selling of approximately one to two condominium units per year. Further, restrictive covenants would be inserted in the master deed and/or the condominium bylaws, to permit only seasonal use of the units, similar to their present use.

5. Section 5.97 of the Bylaw (Exhibit No. 1) provides in pertinent part that:

An existing . . . motel may not be converted to multiple f amily dwelling use under condominium . . . type of ownership, except upon the issuance of a Special Permit by the Zoning Board of Appeals . . . and the sewage disposal system shall comply with Title V of the State Environmental Code and the Health Regulations of the Town of Chatham. . . .

6. Child responded to the Plaintiff's inquiry by stating that, prior to such conversion, the Plaintiff must obtain a special permit from the Zoning Board of Appeals of Chatham ("ZBA"), in accordance with section 5.97. Child's response was prompted by his characterization of the conversion as a change from motel use to multi-family dwelling use.

7. By letter dated September 18, 1987 (Exhibit No. 2), Massachusetts Assistant Attorney General, Henry F. O'Connell, informed Beverly E. Ricci, Chatham Town Clerk, that approval of section 5.97 of the Bylaw would be conditioned on its being applied to only condominium conversions which constitute separate living facilities, containing kitchen, bathroom and sleeping arrangements. In other words, motel units which lack separate living facilities could be converted to condominium-type ownership as of right, while those having such separate living facilities could only be so converted upon the issuance of a special permit by the ZBA.

The issue before the Court is whether, pursuant to section 5.97 of the Bylaw, the Plaintiff's post-conversion use of the Motel constitutes a change in use which may be regulated by a zoning bylaw and for which a special permit is required. On all of the evidence, I find and rule that insofar as the Plaintiff's proposed conversion contemplates no structural change and will restrict use of the units to the their present seasonal use, the proposal is not a change in use, but merely a change of ownership and accordingly is not subject to the procedural restraints set forth in section 5.97 of the Bylaw. Since the proposed use is seasonal, the question as to whether such a nonconforming use in this zoning district may be expanded to year-round occupancy is not before the Court.

The law is well-settled that zoning deals with the use, without regard to the ownership, of the property involved. CHR General, Inc. v. City of Newton, 387 Mass. 351 , 356-357 (1982). Further, it is clear that a change in the form of property ownership does not by itself effectuate a change in use. Sullivan v. Board of Appeals of Harwich, 15 Mass. App. Ct. 286 , 290 (1983) citing Cape Resorts Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 201 , 221-222 (1982). Accordingly, any ownership aspect of the Plaintiff's proposal lies beyond the Defendants' jurisdiction. Moreover, it has been held that a building composed of condominium units does not "use" the land any differently than an identical building containing rental units. CHR, at 356-357. In addition, whether a particular unit of housing is either owned or rented does not affect the water, sewer or traffic patterns of the neighborhood. Bannerman v. City of Fall River, 391 Mass. 328 , 332 (1984).

The conclusion that the Plaintiff's proposal contemplates no change in use finds further support in Sullivan v. Harwich Board of Appeals, 15 Mass. App. Ct. 286 (1983), review denied 388 Mass. 1105 (1983). There, it was held that property owners could transfer their nonconforming use properties into condominium ownership, without first securing a special permit, since the proposed change did not exceed a mere transfer in the form of ownership. Id. at 290-291.

The Defendants contend that the Plaintiff's case is procedurally flawed by a failure to exhaust administrative remedies prior to the commencement of an action in accordance with G.L. c. 231A. The Defendants further assert that the Land Court lacks jurisdiction to entertain the Plaintiff's request with respect to G.L. c. 240, §14A, as such jurisdiction is limited to cases where no actual controversy exists. The Defendants' arguments are, however, misplaced. Section 14A was intended to permit any landowner to petition the Land Court for a decision concerning the validity of any zoning restriction applicable to his land. See Sturges v. Town of Chilmark, 380 Mass. 246 , 249 (1980) ; Harrison v. City of Braintree, 355 Mass. 651 , 654-655 (1969). While there is no specific requirement in G .L. c. 240, §14A that any controversy be shown, Radcliffe College v. City of Cambridge, 350 Mass. 613 , 615 (1966) citing Woods v. City of Newton, 349 Mass. 373 , 376 (1965), it is equally true that this section is not limited to cases where controversy exists. Accordingly, as I find there exists no procedural defect in the action filed under G.L. c. 240, §14A, I deem the Defendants' argument as to c. 231A to be moot and rule that the Land Court has jurisdiction over the matter.

In consideration of the foregoing, I find and rule that, inasmuch as the conversion of the 58 motel units will result in a change in ownership and not use, it may proceed in the absence of a special permit under section 5.97 of the Bylaw.

Judgment accordingly.