MISC 123746

February 8, 1989

Bristol, ss.



Joseph E. O'Neill and Joan E. O'Neill ("Plaintiffs") commenced Miscellaneous Case No. 123746 on June 19, 1987 seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Zoning Board of Appeals of the Town of North Attleborough ("Board") denying their application, under G.L. c. 40A, §8, for an order directing the North Attleborough Building Inspector, Emilio Scaldini ("Scaldini"), to enforce the North Attleborough Zoning By-laws ("By-laws") insofar as they may affect a building located on land owned by Riley Bros. Lumber Co., Inc. ("Riley Bros.").

A trial was held in the Land Court on June 6, 1988 at which all testimony was tape recorded. Three witnesses testified, fourteen exhibits were introduced into evidence and one chalk was submitted to assist the Court. All exhibits and chalks have been incorporated herein for the purpose of any appeal.

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

1. The Plaintiffs are the owners of an improved parcel of land described in a deed (Exhibit No. 1) dated July 16, 1965, recorded at the Bristol County Northern District Registry of Deeds, in Book 1466, Page 130, and more commonly referred to as 14 Ryder Circle, North Attleborough, Massachusetts. Said premises are shown as Lot No. 15 on a plan entitled, "Heritage Homes Estates, North Attleborough Mass.", dated January 1964 (Exhibit No. 2), and as Lot No. 377 on a plan filed with the Office of the Board of Assessors for the Town of North Attleborough, entitled, "Plat No. 9" (Exhibit No. 3).

2. Riley Bros. are the owners of land adjacent to the Plaintiffs' lot, commonly referred to as 62 Reed Avenue, North Attleborough, Massachusetts, which land is shown as Lots No. 22, 23, 332, 368, 369, 374 and 410 on Plat No. 9. A lumber yard is operated on said premises by Riley Bros.

3. The land of both the Plaintiffs' and Riley Bros.' is situated in a Residential Zoning District. Inasmuch as Riley Bros. commenced its lumber yard operation therein prior to the adoption of the North Attleborough Zoning By-laws ("By-laws") (Exhibit No. 5), such business is conducted as a valid, pre-existing nonconforming use.

4. From at least 1969 to the fall of 1984, a small wood frame shed set on cement piers and having dimensions of approximately sixteen (16) feet by sixty (60) feet was located on Riley Bros.' land and used thereupon for the storage of lumber material. Over the years, the shed fell into disrepair.

5. On May 21, 1984, Riley Bros. submitted an application (Exhibit No. 4) for a building permit to replace/repair the shed with another not to exceed sixteen (16) feet by sixty (60) feet, to North Attleborough Building Commissioner, Scaldini.

6. The building permit (Exhibit No. 13) requested by Riley Bros. was issued on May 23, 1984 and stated that work on the shed should commence within ninety days from the date of issuance. Thereafter, on October 5, 1984, Scaldini orally renewed the permit.

7. In March of 1985, Riley Bros. erected a new shed on the site of the original one. The new shed is prefabricated and set on cement piers. It has a metal roof and sides, and dimensions, as identified by Riley Bros., of twenty (20) feet by sixty-two (62) feet.

8. Upon learning of the permit's issuance to Riley Bros., the Plaintiffs questioned Scaldini regarding Riley Bros.' compliance with local By-law provisions governing the restoration of non conforming uses. (See Exhibit No. 5, Sections VII (B) and VIII (B) and (F)). Thereafter, by letter dated April 16, 1985 (Exhibit No. 6), Building Inspector, Scaldini, informed the Plaintiffs that, to the best of his knowledge, neither a variance nor Planning Board approval was required prior to the issuance of the building permit to Riley Bros.

9. By letter dated March 11, 1987 (Exhibit No. 7), the Plaintiffs, through counsel, requested Scaldini to, "serve a notice of violation and order to Riley Bros., such order to direct the discontinuation of the unlawful action, use or condition and the abatement of the violation of the zoning by-law. . . ."

10. On April 4, 1987, Scaldini responded to the Plaintiffs' letter of March 11, 1987 by stating that he would not serve any notice of violation upon Riley Bros., as the shed had been lawfully rebuilt on their property (See Exhibit No. 8). Thereafter, on April 24, 1987, the Plaintiffs appealed Scaldini's decision to the Board.

11. On June 9, 1987, the Board unanimously decided to uphold Scaldini's ruling (Exhibit No. 10). Its decision was based on the following grounds:

The new shed was constructed and rebuilt according to the dimensions and floor limitations of the original structure and used for the same prior use thus not violating the section of the North Attleborough Zoning By-Laws relating to nonconforming uses. The lumber company was located at its present site prior to Zoning becoming effective in North Attleborough. The new shed will blend in with same without changing the character of the neighborhood. Evidence was presented that the building permit was actively prosecuted within six months from its issuance date. . . .

The law with respect to the replacement of valid, pre-existing nonconforming uses or structures is well-established. G.L. c. 40A, §6. Although such uses or structures remain exempt from zoning regulations, See Cullen v. Building Inspector of North Attleborough, 353 Mass. 671 , 677 (1968), there was, prior to the 1975 amendment of General Laws Chapter 40A, no right to erect a new structure in lieu of the existing building which is used for the nonconforming purpose. Berliner v. Feldman, 363 Mass. 767 , 770 (1973) ; Chilson v. Zoning Board of Appeals of Attleborough, 344 Mass. 406 , 411-412 (1962) ; Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657 , 661 (1956) ; Wilbur v. City of Newton, 302 Mass. 38 , 43 (1938). Today, however, the pertinent language of G.L. c. 40A, §6 provides in relevant part that:

Pre-existing, nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority . . . that such change, extension, or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. . . .

As far as the record shows, however, there was no proceeding conducted pursuant to this section. Accordingly, the instant matter is governed by Sections VII( B ) ( l ) ( a ) ( l ) and ( 2 ) of the By-laws which provide in pertinent part as follows :

(1) Any nonconforming structure . . ., which is totally destroyed by fire or other natural cause, may be rebuilt on its original foundation according to original floor area limitations, and used for its original purpose, provided special permit is granted by the Board. . . .

(2) Any nonconforming structure . . . which is damaged by fire or other natural cause, may be repaired or rebuilt according to the dimensions and floor limitations of the original structure and used for its original use. . . .

In accordance with either of these By-law provisions, Riley Bros. was required to rebuild the shed "according to the dimensions and floor area limitations or the original structure", which dimensions delimited the maximum permissible size and shape of the rebuilt structure. See Berliner at 777. The evidence presented at trial, however, indicates that, despite the building permit application's express limitation that the new shed retain the original shed's dimensions of sixteen (16) feet by sixty (60) feet, Riley Bros., by their own admission, erected a new prefabricated, metal shed measuring twenty (20) feet by sixty-two (62) feet, in direct contravention of the terms of the building permit. Riley Bros. nevertheless argues that this dimensional deviation is "de minimus", and therefore, lawful. I do not, however, find a twenty-five percent (25%) increase in the overall size of said structure to be "de minimus." See Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1 , 11 (1983). I therefore rule that, under the instant circumstances, the decision of the Board must be annulled and the matter remanded for appropriate proceedings.

Judgment accordingly.