MARK CARNEVALE, Trustee of the Lanctot Marina Trust, vs. WILLIAM NICHOLSON, JAMES D. HARRINGTON, ANDREA DALEY, LESLIE A. ROY, JOHN F. LEARY, JR., ALBERG R. EDSON, GEOFFREY FINN and EDWARD SULLIVAN, as they comprise the BOARD OF APPEALS OF THE TOWN OF DANVERS.

Ronald Lanctot, former Trustee of the Lanctot Marina Trust ("Plaintiff") [Note 1] commenced the above-entitled action on January 24, 1985, seeking judicial review, in accordance with G.L. c.40A, §17, of a decision of the Board of Appeals of the Town of Danvers ("Board") denying his application for a special permit to extend or alter the valid, pre-existing nonconforming uses, pursuant to G.L. c.40A, §6, of property located at 102 Liberty Street ("Parcel No. 102") and 112 Liberty Street ("Parcel No. 112") in Danvers, Massachusetts.

On September 3, 1987, this Court issued an Order partially granting the Plaintiff's motion for summary judgment. Specifically, the Court concluded, contrary to the Board's decision of August 19, 1985, that the Plaintiff's use of the premises located at 102 Liberty Street was commenced under a validly issued special permit and became a nonconforming use upon a change in the Danvers Zoning By-laws ("By-laws") which no longer allowed such a use in the zoning district. Said nonconforming use is described below.

A trial was held in the Land Court on June 7 and July 19, 1988, at which times a stenographer was appointed to record and transcribe the testimony. Prior to trial, the parties filed a stipulation of facts, certain of which have been included in the findings set forth below. Six witnesses testified, ten exhibits were introduced into evidence and one chalk was presented to assist the Court. All exhibits and chalks have been incorporated herein for the purpose of any appeal. The Court viewed the subject premises', in the presence of counsel, immediately following the first day of trial.

On all of the evidence, I find the following facts:

1. The Plaintiff is the owner of two noncontiguous parcels of real estate located at 102 Liberty Street and 112 Liberty Street in Danvers, Massachusetts. Said parcels are shown as Lot No. 42 and Lot No. 44A, respectively, on Map 52 of the maps filed with the Office of the Board of Assessors for the Town of Danvers (See Chalk "A") and are situated in a Residence II Zoning District.

2. Liberty Street is a relatively straight and well-travelled road, having a posted speed limit of thirty-five (35) miles per hour. From Parcels No. 102 or 112, it has a northerly sight distance of between 700 and 1200 feet and a southerly sight distance of approximatley 600 feet.

3. Parcel No. 102 is an "L" shaped tract of land consisting of approximately 34,055 square feet. These premises have been operated as a boatyard since June 18, 1979 when a special permit for such use was issued to Stephen P. and Bernice F. Zuk, the original Plaintiff's predecessors in title. At present, Parcel No. 102 is used by the Lanctot Marina, and Osgood's Boatyard pursuant to a Lease Agreement with the Lanctot Marina Trust, for boat and equipment storage during the winter months. In the summer, Parcel No. 102 is available for overflow parking, but is rarely used for such purposes.

4. Parcel No. 112, consisting of approximately 12,500 square feet of land, is used for the operation of the Lanctot Marina and provides on-site parking for some fifteen (15) to twenty (20) automobiles. Two rows of boat slips sufficient to accommodate about forty-eight (48) boats extend from said property into the Porter River ("River") at the head of navigation. The operation of Parcel No. 112 as a marina and boatyard is a valid, pre­existing nonconforming use, said operations having been commenced at a time when the By-laws permitted such uses in the zoning district as a matter of right.

5. Parcels No. 102 and 112 are separated by a tract of land consisting of approximately 1.4 acres, commonly referred to as Osgood's Boatyard. Said premises are used for boat repair, maintenance and storage, and provide no on-site parking accommodations. Across the River from Parcel No. 112 is Pope's Landing, a municipal boat-launching ramp and dock, which includes parking facilities. In addition, there are two other marinas in the immediate area: the Port River Marine Center and the Danversport Yacht Club.

6. On January 6, 1983, Roland Lanctot was issued a special permit to conduct maintenance dredging in a portion of the River adjacent to his Liberty Street real estate (see Exhibit No. 3A), in accorance with a plan entitled, "Plan and Profile of Proposed Maintenance Dredging and Float Extensions at Lanctot Marina, Danvers, MA", dated October 28, 1981 and revised on December 8, 1981, June 3, 1982, July 23, 1982, October 27, 1982 and November 2, 1982 ("Plan and Profile") (Exhibit No. 8). The special permit was amended by the Board on May 6, 1982 so as to extend the date of the project's completion (See Exhibit No. 38).

7. On September 24, 1984, the Board voted to amend the By-laws so that boatyards and marinas would no longer be permitted, by special permit or otherwise, within a Residence II Zoning District.

8. On July 9, 1985, the Plaintiff applied to the Board for a special permit, pursuant to G.L. c. 40A, §6, to extend the docks situated on Parcel No. 112 for the accommodation of twenty-seven (27) new boat slips, sufficient to berth approximately fifty-four (54) additional boats, and to provide accessory parking on Parcel No. 102 for about fifty-eight (58) automobiles. Said application was accompanied by the Plaintiff's Plan and Profile.

9. The Board voted to deny the Plaintiff's application with respect to both parcels on August 19, 1985. The basis for its denial as to Parcel No. 102 was that the present use thereupon was "allowed under a special permit . . . and therefore does not constitute a nonconforming use." With respect to the Plaintiff's proposed expansion of Parcel No. 112, the Board found that "there would be significant traffic generated by the additional boat owners and their guests, and disturbance to the neighborhood created by the related use, storage, repair and maintenance of the additional boats. . ." (See Exhibit No. 3E).

In reviewing an appeal brought pursuant to G.L. c. 40A, §17, the duty of the Court is to hear the matter de novo, make independent findings and affirm the decision if it rests on legally tenable grounds and is not unreasonable, whimsical, arbitrary or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct . 856 (1980). As the Court's review is limited to the validity of the Board's action in granting or denying the special permit, Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983), it may not substitute its judgment for that of the Board. Garvey at 856; Subaru at 486-488; Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969). In the instant action, I find and rule that insofar as the Plaintiff's proposed extension and alteration of the pre-existing, nonconforming uses of Parcels No. 102 and 112 will, in effect, result in new uses of such property, the Board's denial of the Plaintiff's application for a special permit was reasonable and legally tenable, and accordingly, must be affirmed.

The Plaintiff's application for a special permit states as follows:

(1) The applicant seeks to extend the use at 112 by creating 27 new boat slips. . . .

(2) The applicant seeks to extend the use at 102 by utilizing it for parking purposes in conjunction with the activities at 112 Liberty Street.

At present, the lawful use of Parcel No. 102 is the operation of a boatyard, such use being for boat storage and repair, rather than docking. The use of such land as a boatyard, rather than a marina, is attested to by testimony offered at trial as well as a view of the premises, both of which reveal that Parcel No. 102 lacks any direct access to navigable waters. Further, the specific use adjudged to be a valid and nonconforming use by Order of this Court was use as a boatyard in accordance with the special permit dated June 18, 1979. The Plaintiff now proposes to expand and alter this use of Parcel No. 102 by providing parking accommodations thereupon for approximately fifty-eight (58) automobiles, prinicipally for the benefit of those using and /or visiting the Lanctot Marina at Parcel No. 112. The proposal thus contemplates a use of Parcel No. 102 which is incidental or auxiliary to a noncontiguous lot. Consequently, as a boatyard use cannot be reasonably construed to entail parking facilities for a marina, and certainly not one situated on an entirely separate tract of land, the Plaintiff's proposal as to this parcel will result in a new and different use of the property, in direct contravention of the well-established standards for non conforming uses. See Town of Bridgewater v. Chuckran, 351 Mass. 20 (1966); Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973); First Crestwood Corporation v. Building Inspector of Middleton, 3 Mass. App. Ct. 234 , 236 (1975). More specifically, the Plaintiff's plan: (1) fails to reflect the nature and purpose of the pre-existing, nonconforming boatyard use; See Massachusetts Broken Stone Co. v. Weston, 346 Mass. 657 , 662 (1964); Superintendent & Inspector of Buildings of Cambridge v. Villari, 350 Mass. 176 , 177-178 (1966); (2) differs in quality or character, as well as degree, from the present boatyard use; See Brady v. Board of Appeals of Westport, 348 Mass. 515 , 523 (1964); Building Inspector of Malden v. Werlin Realty Inc., 349 Mass. 623 , 624-625 (1965); and (3) differs in kind from the boatyard use in its effect on the neighborhood, particularly as it threatens to exacerbate the present traffic situation on Liberty Street. See Medford v. Marinucci Bros. & Co., Inc., 344 Mass. 50 , 60 (1962). Accordingly, inasmuch as the principle nonconforming use of Parcel No. 102 is for the operation of a boatyard, the Plaintiff's proposal would create an entirely new use of the premises. The Board did not, therefore, exceed its authority or abuse its discretion in denying the Plaintiff's petition for a special permit with respect to this property.

Similarly, the Plaintiff's proposal with respect to Parcel No. 112 runs afoul of the three-pronged test enunciated in Chuckran, supra. The Plaintiff seeks to expand the present nonconforming marina use of Parcel No. 112 by extending the piers situated thereupon and adding twenty-seven (27) new boat slips sufficient to moor approximately fifty-four (54) additional boats. As the Lanctot Marina presently provides berthing spaces for a maximum of forty-eight (48) boats, the Plaintiff proposes to more than double its size. However, while it is true that a use is not "different in kind" under the Chuckran test simply because it is larger, Building Commissioner of Medford v. McGrath, 312 Mass. 461 , 462 (1942), the increased use must be attributable to the growth of the original nonconforming use in order to fall within this rule. Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 , 214 (1982) citing Kreger v. Public Buildings Commissioner of Newton, 353 Mass. 622 , 627 (1968). Further, a relatively small, existing nonconforming use may not be so enlarged as to be different in kind in its effect upon the neighborhood. Inspector of Buildings of Burlington v. Murphy, 320 Mass. 207 (1946). In the instant case, the Plaintiff's proposal entails a significant enlargement of the marina, and accordingly a substantial increase in activity therein, which rises more to the level of a substantive change in use than a mere growth in business. Moreover, inasmuch as the evidence introduced at trial reveals that the proposed expansion of the present marina use of Parcel No. 112 will intensify existing noise, t raffic and parking problems on Liberty Street and thereby detract further from the residential character of this particular zoning district, I find that the Board did not exceed its authority or abuse its discretion in denying the Plaintiff's application for a special permit for such expansion.

In consideration of the foregoing, I rule in summary that insofar as the Plaintiff's proposed alterations and/or expansions of the nonconforming uses presently operated at 102 and 112 Liberty Street in Danvers will essentially result in new uses, rather than a mere enlargement of the existing uses, the Danvers Board of Appeals rendered a legally tenable and reasonable decision and did not exceed its authority or abuse its discretion in refusing to issue the special permit so requested by the Plaintiff.

The Plaintiff has submitted requests for findings of fact, which I have considered. Certain of these requests have been incorporated herein. I have taken no action on the remainder, as I have made my own findings as to those facts which I deem pertinent.

Judgment accordingly.