MISC 129573

February 5, 1990

Norfolk, ss.



The plaintiff, Richard McLaughlin, the owner of a parcel of property now known as and numbered 131 Clinton Street in Brockton in the County of Plymouth, has appealed pursuant to the provisions of G.L. c. 40A §17 from a decision of the Brockton Zoning Board of Appeals that he is not entitled to use such premises as a parking area for contractor's equipment. The case was remanded to the Board of Appeals pursuant to a stipulation between the parties so that the Board might determine "whether the use presently conducted on the subject locus constitutes a valid nonconforming use of said premises in accordance with the provisions of M.G.L.C. 40A §6 and Article VI of the Zoning Ordinances of the City of Brockton ." There also is a pending case for declaratory and injunctive relief in this Court, Miscellaneous Case No. 127502.

The plaintiff's motion for summary judgment was argued on January 25, 1990, and it is hereby allowed.

The Brockton Zoning Ordinance has two sections which expressly relate to nonconforming uses as well as other sections relating to destruction and damage thereof, abandonment or unsafe structures. In §27-39 there are the general provisions for an enlargement, alteration or reconstruction of a nonconforming use subject to a provision that the structure shall not exceed 50% of the original square footage; a provision which may not comply with the provisions of G.L. c. 40A §6, but which is not here in issue. Section 27-39 also contains a requirement similar to that of §6 that there must be a finding by the Zoning Board of Appeals "that such extension [sic], alteration or reconstruction shall not be substantially more detrimental than the existing nonconforming use to the neighborhood."

There is, however, an additional provision on changing a nonconforming use to one which is permitted in a more restrictive zone or to another use of the same classification, this is §27-43 which in its entirety reads as follows:

Once changed to a conforming use, no building or land shall be permitted to revert to a nonconforming use. A nonconforming use may be changed to a use of the same or more restrictive classification, and such use thereafter shall not be changed to a lower classification.

1. A nonconforming use or structure shall not be changed into another nonconforming use which is permitted in a less restrictive district.

2. A nonconforming use may be changed into a conforming use.

3. A nonconforming use which is not permitted in any district may only be changed to conforming use.

4. When a nonconforming use shall be changed in accordance with the provisions hereof, the use of the building or other structure shall not thereafter be changed again except in accordance with these regulations.

The first question that must be addressed is one which apparently has not as yet been decided by either the Appeals Court or the Supreme Judicial Court, i.e. whether a City or Town may treat the continuation of nonconforming uses more generously than the minimum required by §6. Under the previous wording of the enabling act prior to the adoption of St. 1975, c. 808 the provisions of G.L. c. 40A relative to nonconforming uses were found in §5. I have compared the language of the old §5 with the new §6 and find no differences insofar as this problem is concerned. In construing the previous section the Supreme Judicial Court held in Chilson v. The Zoning Board of Appeals of Attleboro, 344 Mass. 406 , (1962) that "[T]he statute prescribes the minimum tolerance which must be given to nonconforming uses" (Page 411). In Chilson, Justice Whittemore writing for the Court sanctioned an ordinance which authorized an alteration, enlargement, reconstruction, replacement of or addition to a nonconforming use. In the present case, the same result should follow.

Under both §§6 and 27-39 the two legislative bodies have authorized changes in nonconforming uses so long as there is a finding by the Zoning Board of Appeals that the extension, alteration or reconstruction shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. It is open therefore for the owner of any nonconforming use to seek such a finding from the Board of Appeals either by virtue of a special permit or by an appeal from a decision of the building inspector. If it were not for the additional provision, a trial de novo would be required to determine whether the Board of Appeals erred in its decision. However, the Brockton Ordinance contains an additional provision which authorizes a change from the same nonconforming use to a nonconforming use of the same classification or one of a more restrictive nature. This is a one-time change and whether subsequently the provisions of G.L. c. 40A §6 or 27-39 could be utilized need not be decided today.

The previous utilization of the premises for the storage, sale and processing of scrap metal was carried on for a period beginning about 1934 and continued until after the purchase of the premises by the plaintiff. The plaintiff now uses the premises for the storage of contractors' equipment which includes bulldozers, front-end loaders, dump trucks, backhoes and the like. The plaintiff's use has generated neighborhood opposition because of the nearby location of a grammar school and because of alleged abuses such as parking on the side walk or turning in the school yard, both of which, if substantiated, are matters for the public authorities. The question now presented is whether the Brockton Zoning Ordinance classifies he previous use in the same or a less restrictive category than that which the plaintiff has carried on for the past three years. To reverse the question, the Court must determine whether the plaintiff is using the premises for a use permitted in the same or a more restricted district than that carried on by his predecessor-in-title; if he is, than the ordinance authorizes such use and makes no provision in this section for any finding by the Board of Appeals. By the very nature of this section I do not read the limitation which generally applies to nonconforming uses, that is, §27-39 into §27-43. The plaintiff's use falls either into the category of a truck terminal which is a principal permitted use in an I-1 Industrial Park Zone as set forth in §27-33 subparagraph lG of the ordinance, or a contractor's equipment, sales and service establishment which is a permitted use pursuant to §27-34 subparagraph lG ,in an I-2 General Industrial Zone. The use made by the previous owner of the property would be classified in §27-35, an I-3 Heavy Industrial Zone, as either a principal permitted use of smelting of mineral ores under §1 sub-paragraph 1B7 or a permitted special use under sub-paragraph 3B for outdoor storage and junk yards.

The disagreement between the parties centers on the proper reading and role of the ordinance, and there is no dispute that the past and present uses may be categorized as set forth herein. Use by the plaintiff, whether classified as a use permitted in an I-1 or I-2 district, falls within the language of §27-43, altering changes to uses of right in more restrictive zones without prior review by the Zoning Board of Appeals. I therefore find for the plaintiff on its Motion for Summary Judgment which is hereby granted.

By the Court