This dispute mirrors an apparent policy disagreement between the Stoneham Board of Selectmen, the plaintiffs, on the one hand, which seeks to preserve the residential zoning of the parcel in question or perhaps provide damage control to a previous decision of theirs, and the defendant Board of Appeals, on the other, which has granted the landowner the relief he seeks in the interest of alleviating traffic and parking problems on Main Street in said Stoneham. The defendant William H. Round is the owner of a Main Street parcel on which there is located a building housing both a hardware store and offices and an adjacent lot on Central Street on which there is a residential building. The strip zoning so prevalent at the advent of zoning doubtless is the root cause of the clash.
The parties filed cross motions for Summary Judgment which were argued before the Court on June 1, 1989 with additional time afforded thereafter for the submission of an additional memorandum of law. The parties agreed to all the material facts, and the case was submitted on the following Agreed Upon Statement of Facts, Agreed Upon Exhibits and Agreed Upon Stipulations:
1. The defendant, William H. Round, the owner of 62-64 Central Street, Stoneham, filed an application in 1984 with the Stoneham Building Inspector to establish professional parking behind the house located on that lot, and to be rented to the William H. Round Realty Trust which owns property at 294 Main Street, Stoneham, Massachusetts.
2. The property at 62-64 Central Street (hereinafter referred to as the "subject lot") is, and at all relevant times was, located in a Residence B District according to the Zoning Map for the Town of Stoneham, Massachusetts. The property at 294 Main Street, Stoneham, was in 1984, located in a "Retail A Business District", and is presently located in a "Central Business District", according to the Zoning Map for the Town of Stoneham, Massachusetts.
3. The building at 294 Main Street is occupied by a hardware store ("Round's Hardware") on the first level, containing approximately 8,500 square feet of gross floor area. The second floor contains nine (9) office suites, containing approximately 4,800 square feet of floor area. The office suites are used or rented for various business and commercial purposes and contain two professional offices which together have approximately 1,025 square feet of floor area - the office of a psychologist containing approximately 425 square feet of floor area and the office of counseling and consultation associates containing approximately 600 square feet of floor area. The remainder of the second floor is used for storage purposes.
4. On October 23, 1984, the Stoneham Board of Selectmen "Voted to waive the requirements of a Site Plan Hearing on [Defendant Round's] application to establish a professional parking lot to be rented to William H. Round Realty Trust." A copy of the Board's letter, dated October 24, 1984, is attached and incorporated herein as Exhibit "1".
5. On September 18, 1985, Defendant Round gave notice pursuant to M.G.L. Chapter 41, Section 81P and Chapter 40A, Section 6 that he was submitting a plan of land to the Town of Stoneham Planning Board for their endorsement as an "Approval Not Required Plan". Said notice and plan are attached and incorporated herein as Exhibits "2" and "3" respectively.
6. The "Approval Not Required Plan", indicating nine parking spaces on the subject lot, was submitted to the Stoneham Planning Board. It was endorsed and signed by the Board as an "Approval Not Required Plan" pursuant to M.G.L., Chapter 41, Section 81P. The endorsement of the plan was never appealed and the plan subsequently was recorded with the South Middlesex Registry of Deeds as Instrument No. 902 on September 20, 1985.
7. On October 19, 1987, the Defendant Round filed with the Stoneham Building Inspector an Application For Permit to Alter or Repair a Building seeking to remove the existing dwelling and enlarge the existing parking area to include the remaining portion of the lot on the subject lot. Said application is attached and incorporated herein as Exhibit "4".
8. On or about February 8, 1988, the Defendant William H. Round, through his attorney, filed an appeal of the Building Inspector's "refusl" to grant the requested permit, with the Board of Appeals. A copy of the appeal is attached and incorporated herein as Exhibit "S".
9. On February 19, 1988, the Building Inspector denied, in writing, the Defendant's application for a permit. Said denial is attached and incorporated herein as Exhibit "6".
10. The legal notice for the scheduled February 25, 1988 public hearing on the Defendant William H. Round's appeal to the Board of Appeals stated, in pertinent part, that, "(y)ou are hereby notified that the STONEHAM BOARD OF APPEAL will hold a Public Hearing. . .to consider the appeal of WILLIAM H. ROUND, 64 Central Street, Stoneham, Massachusetts, in accordance with Massachusetts General Laws Chapter 40, Section 8 from a decision of the Building Inspector refusing to grant petitioner a permit allowing the extension of an existing parking lot located at 64 Central Street, Stoneham, Massachusetts, said land is currently zoned Residence B". A copy of the Legal Notice is attached and incorporated herein as Exhibit "7".
11. Subsequent to the first day of the hearing on February 25, 1988 and prior to the continuation of the hearing on March 31, 1988, another legal notice regarding the hearing was published, and read in pertinent part that, "(y)ou are hereby notified that the Stoneham Board of Appeals will hold a Public Hearing to consider the appeal of WILLIAM H. ROUND, 64 CENTRAL STREET for a variance in the Stoneham Town Code, Section 4.3, Residence B zone for professional parking. A plan filed with the petition by Chester Redmond, ProfessionaLEngineer, titled 'Amended Site Plan of Land in Stoneham' dated September 28, 1987 shows the existing dwelling at 64 Central Street to be razed and twenty-one parking spaces provided." A copy of the Legal Notice is attached and incorporated herein as Exhibit "8".
12. On March 31, 1988 the Board of Appeals reconvened the hearing on the appeal of the Defendant William H. Round and by a vote of four to one, with Alan Melkonian, William DeTullio, Vincent LoPresti and Michael Crespi voting in favor and Cameron Bain voting against, voted, in pertinent part, to "approve Petitioner's request to use the premises at 64 Central Street in Residence B zone for professional parking only, with no more than twenty-one spaces" A copy of the minutes of the Board of Appeals' March 31, 1988 meeting are attached and incorporated herein as Exhibit "9".
13. On April 25, 1988, the Board of Appeals filed its decision with the Town Clerk for the Town of Stoneham, a copy of which is attached hereto as Exhibit "10". That decision stated, in part, that "the board voted to grant the extension of an existing parking lot into Residence B zone at 64 Central Street for professional parking only. . . ."
The plaintiff Selectmen first attack the adequacy of the published notice of the hearing and of the adjourned hearing. Section 11 of Chapter 40A of the General Laws sets forth the requirements as to publication in zoning matters. Exhibit No. 7 which is the original notice specifically refers to the section 8 appeal from the decision of the Building Inspector and the relief sought, the extension of the parking lot at 64 Central Street. The second notice which also was twice published refers incorrectly to a variance. I find and rule that the publications sufficiently apprised any interested party and the public generally of the relief the defendant Rounds sought even if the route by which this was to be obtained was (and is) murky.
Similarly the decision of the Board of Appeals and the grounds on which this was reached are abbreviated. The Board voted "to grant the extension of an existing parking lot into Residence B zone at 64 Central Street for professional parking only subject to" certain conditions not material here (Exhibit No. 10). The decision also recites:
The board considered that filing of a plan titled "Plan of Land in Stoneham, Mass. Showing Proposed Parking" by Chester Redmond, R.L.S. dated September 20, 1984 and endorsed "Approval Under the Subdivision Control Law Not Required" by the Planning Board September 18, 1985, allowed parking for professional buildings in residence B prior to the zoning recodification in October 1985. The board reviewed Chapter 40A, Section 6 of the Massachusetts General Laws which states that pre-existing nonconforming uses may be extended and found that this extension would not be substantially more detrimental than the existing nonconforming use in the neighborhood.
I find and rule that the provisions of G.L. c. 40A, s. 6 insofar as they relate to an extension of a nonconforming use are irrelevant, but that the provisions of such section [Note 1] preserving the previous zoning for three years after the endorsement of an ANR plan permit the use of the Central Street premises as an accessory use to a professional building. Prior to the recodification of the Zoning By-Law a permitted use in a Residence B District was "Professional buildings to include office or studio of a physician, dentist, lawyer, architect or artist . . ." (Exhibit No. 12). The parking necessarily accessory to such a professional building clearly was a permitted use as well until the recodification. The Selectmen argue that section's protection afforded ANR plans does not avail the defendant Round since Bellow Farms. Inc. v. Building Inspector of Acton, 364 Mass. 253 (1973) established that it was only "use of the land", not changes in off-street parking and lot area requirements that were protected. The Selectmen are wrong, however. Granted that the Supreme Judicial Court held in Bellow Farms that density requirements are not grandfathered by the recording of an ANR plan, but that is not this case. The present case deals with use of the premises for parking, it is the use, not the required number of parking spaces for a particular use as illustrated by Section 15-75 of the By-Law which is the issue here. It should make no difference that the professional building to which the parking is accessory is within a different zoning district and that the building is a mixed use building and not solely professional offices since the grant by the board is limited to professional parking.
In my opinion, Section 15-46(g) is inapplicable since it relates to parking required for the Main Street parcel whereas the dispute centers on the appropriate permitted use of the Central Street locus.
On the facts as agreed and the law applicable thereto I find and rule that the grant of the Board of Appeals was proper, the use as a parking lot for a professional building having been preserved by the recording of an ANR plan. I therefore grant the defendants' motion for summary judgment.
[Note 1] "When a plan referred in section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, and use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan while such plan is being processed under the subdivision control law including the time required to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required, or words of similar import."