MISC 131985

January 24, 1991

Norfolk, ss.



This is an action brought by Edward Tausevich, Leonard Tausey and Robert Stein ("Plaintiffs") pursuant to G.L. c. 40A, §17 requesting that a decision of the Zoning Board of Appeals of the Town of Stoughton ("the Board") on April 6, 1984 be declared invalid and that members of the Board be enjoined from further considering any matters concerning the expansion of a building located at 710 Turnpike Street in Stoughton ("the Building"). Plaintiffs also seek a determination of the applicability of §IX (B) (2) of the Zoning By-Law of the town of Stoughton ("the By-Law") (Exhibit No. 8) to the Building and request that this Court direct the Board to instruct the Building and Zoning Officer of the Town of Stoughton to issue a building permit for the construction of an extension to the Building pursuant thereto. Finally, Plaintiffs request damages in the amount of One Million Dollars ($1,000,000.00) plus interest and costs and that the Board's action be declared an unlawful taking of Plaintiffs' property. The April 6, 1984 decision denied the Plaintiffs' application seeking the grant of a Special Permit pursuant to §IX (E) of the By-Law to modify or change a nonconforming use to a use not substantially different from the existing use. Plaintiffs attempted to argue, at the hearing, a claim under §IX (B) (2) requesting a determination that they could expand the Building as a prior nonconforming use. Plaintiffs have waived their §IX (E) claim leaving the only issue before the Court a claim under §IX (B) (2) of the By-Law which in turn is dependant upon whether there has been a change in the use of the Building so as to render the use illegal rather than nonconforming.

This case has reached the Land Court after considerable prior litigation. Plaintiffs originally brought suit in Norfolk Superior Court (Action No. 138868) under G.L. c. 40A §17, appealing the revocation of a building permit ("Permit No. 10,592") to expand the Building. That Court entered a partial summary judgment in favor of the Board on that issue, but did not enter final judgment in the case, leaving undecided a claim that the Board violated the Open Meeting Law, G.L. c. 39 §23B. The entire case was then dismissed without prejudice by the parties following a stipulation that Plaintiffs would apply for a Special Permit, while reserving a claim under IX (B) (2). On April 25, 1984, after the Board refused to grant the Special Permit, Plaintiffs filed an appeal in Norfolk Superior Court under G.L. c. 40A §17 upon which that Court granted summary judgment on the grounds that the action was barred by the prior Court action involving the Board's revocation of the building permit. The Supreme Judicial Court, however, reversed the Superior Court and remanded the case. Tausevich v. Board of Appeals of Stoughton, 402 Mass. 146 (1988). Subsequently, the Superior Court transferred the action to this Court pursuant to G.L. c. 212 §26 (a).

A trial was held on October 26, 1990, at which time the proceedings were transcribed by a court-appointed reporter. Four (4) witnesses testified and twenty-two (22) exhibits were introduced into evidence. All of the exhibits are incorporated herein for the purpose of an appeal. The parties have stipulated to twenty-five (25) uncontested facts.

On all the evidence before the Court including the pertinent stipulated facts, I find as follows:

1) The Building is located on a parcel of land in Stoughton, containing approximately 50,717.50 square feet, known as 710 Turnpike Street (the Building and land constitute "the Premises") and is in a district zoned for residential use. It is owned by Plaintiffs as a partnership under the name of TST Associates ("TST") (See Exhibit No. 3).

2) From June 29, 1961 to June 15, 1978 the Building was used by Engineered Advertising, Inc. ("Engineered"), a small industrial advertising agency for office purposes including the preparation and distribution of printed materials, such as bulletins, catalogs, newsletters. The agency created sketches and drawings which were photocopied, there were no printing facilities on the Premises. Engineered also mailed literature to representative agents, distributors and wholesalers and did a limited amount of market research. The Building had a conference room which was occasionally used for meetings with clients. Although the number of employees on the Premises varied over time, there averaged about five (5) or six (6) people. Most of the dealings with clients occurred outside of the office.

3) The Town of Stoughton first adopted the By-Law in 1956 and at that time the area in which the Building was located was zoned for business use. In 1964, the By-Law was amended, changing the district from business to residential, the use of the Building thereby becoming nonconforming.

4) On June 15, 1978, Plaintiffs purchased the Building from Engineered for use as offices for their business of manufacturers' representatives (See Exhibit No. 3). Manufacturers' representatives are commissioned agents for various manufacturers. As such, they sell various lines of goods in specified geographical areas. They do no physical handling of the goods themselves except to the extent they may bring samples to their prospective customers. Those customers are distributors, wholesalers, and major retailers. Plaintiffs do no direct retail sales. Plaintiffs employ salesmen who do most of their work on the road. Activities in the Building are done primarily by secretaries who take calls and handle the mail. On occasion the salesmen will make phone calls from the offices. Plaintiffs employ approximately five (5) to eight (8) people to work full-time or part-time in the Building.

5) There are presently two other manufacturers' representative organizations doing similar work and a psychologist renting space in the Building from TST. There is no evidence as to the amount of traffic generated by these businesses.

6) On December 9, 1982, the Building Inspector of the Town of Stoughton issued Permit No. 10,592 to Plaintiffs for extension of the Building to be built wholly on the Premises. The proposed extension is in accordance with the dimensional and density regulations of the By-Law. Plaintiffs intended to expand the facilities due to a projected expansion of their business.

7) Plaintiffs commenced construction of the addition and by January 1983, substantially completed the foundation, exterior walls, roof and some interior wall studding.

8) By a decision dated January 19, 1983, the Board reversed the Building Inspector's decision and revoked Permit No. 10,592, thereby triggering the aforementioned litigation.

9) On November 16, 1983 and December 9, 1983, Plaintiffs filed applications under §IX (E) of the By-Law for a Special Permit allowing a change from one nonconforming use to another while also reserving their claim that under §IX (B) (2) of the By-Law the proposed expansion is allowed as of right. The two above-mentioned applications contain no material differences and the reason for the duplication was not given at trial.

10) The Board refused to acknowledge any right of Plaintiffs pursuant to §IX (B) (2) of the By-Law and on April 6, 1984 filed a decision denying Plaintiffs' Application for a Special Permit stating:

. . . TST Assoicates' [sic] present use of the property is a substantially different use than the use by Engineered Advertising at the time of the change in the zoning by-law by reason of its readily observable differences in patronage, service, employment and traffic volume . . . .

11) The pertinent Section of the By-Law would appear to be §IX:

B. Extension and Alteration

2. Any nonconforming . . . use of a structure shall not be extended, except that a nonconforming use may be extended within the limits of ownership . . . and shall be in accordance with the dimensional and density regulations of Section VI.

3. Any nonconforming structure may be extended and may be altered and the use extended throughout the altered portion provided that any resultant extension or alteration shall not cause the structure to violate the dimensional and density regulations of the district in which it is located.

E. Change

1. Any nonconforming use of a structure may be changed to another nonconformity (sic) use, provided: the changed use is not a substantially different use, except as provided in paragraph 2 below and approval for the change is granted by a Special Use Permit for an exception by the Board of Appeals.

For purposes of this section, a substantially different use is a use which by reason of its normal operation, would cause readily observable differences in patronage, service, sight, noise, employment or similar characteristics, from the existing nonconforming use or from any permitted use in the district under question.

While it appears Plaintiffs have waived any claim for a Special Permit under §IX (E), I will consider their rights under the By-Law as a whole due to both the history of this case and the requirement that all pertinent portions of a by-law must be read together and if possible interpreted so as to be consistent with each other and in conformity with G.L. c. 40A.

It could be argued that when read alone §IX (B) confers more liberal rights on the landowner than G.L. c. 40A §6.

That Section reads in part:

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 (or structure) to the neighborhood.

Upon careful reading of §§IX (B) and (E) (1), particularly the second paragraph of (E) (1), it would appear that any but the most minor changes in use are prohibited, inasmuch as the definition of a "substantially different use" is to be applied to "this section," which I must read to mean §IX in its entirety.

While the proposed structure appears to be in conformity with the By-Law, the use of the Premises, should the By-Law as written stand, would be limited to a use which would have no readily observable differences as specified from the activities predating the zoning change.

In the instant matter, I do not, however, find either §§IX (B) or (E)(1) to be consistent with the pertinent language of G.L c. 40A §6 and accordingly find that, in the circumstances of this case, the statute, not §IX controls.

Prior to the revision of G.L. c. 40A by G.L. c.808 of the acts of 1975, changes or expansions of a nonconforming use were severely limited if not completely prohibited, Inspector of Buildings of Burlington v. Murphy, 320 Mass. 207 (1946); Adamsky v. Mendez, 326 Mass. 603 (1951). G.L. c.808, however, rewrote the former G.L.c. 40A §5 to the present G.L. c. 40A §6 including the above language. While there has been comment that this portion of §6 may "be read as authorizing municipalities to provide for extensions or alterations of nonconforming uses by Special Permit while not requiring them to so provide," Sullivan v. Board of Appeals of Harwich, 15 Mass. App. Ct. 286 , 290 n.2 (1983), I do not find that to be the case in this instance. Here the Town has seen fit to enact a by-law providing for expansion of a nonconforming use. By following what appears to be, at least in part, the "pre G.L. c. 808", G.L c. 40A §5 language, the By-Law severely restricts any expansion of such use to an imperceptible change. The Legislative intent in enacting c. 808 clearly was to provide for a reasonable change in nonconforming use, and did this by providing that the change be not "substantially more detrimental" than the existing use. While there may be limitations to the extent of such use, I find such limitations, if any, not here pertinent. Accordingly, the Town must follow the standards of the statute.

As above noted, Plaintiffs have waived any right as to the Special Permit and, while they have raised the applicability of §IX (B) (2) to the Premises, they do not appear to have joined the Town as required in a proceeding under G.L. c.240 §14A nor have they asked for such determination as to §IX (E) (1). However, again considering the history of this matter and the apparent futility of remanding this matter to the Town and in the interest of obviating further litigation, I find that the limitations of §IX particularly as to §§(B) and (E) (1) are unreasonable and contrary to law [Note 1] and that the standard to be applied in this instance is that of G.L. 40A §6, whether the proposed use is substantially more detrimental to the neighborhood.

The Court in Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 652-658 (1973) reviewed a number of cases involving nonconforming uses under the prior version of Chapter 40A and therein referred to a three-pronged test evolved in Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966), "for determining whether current use of property fits within the exemption granted to nonconforming uses." Powers, supra at 653, quoting Chuckran. That test is as follows: [Note 2]

(1) Whether the use reflects the 'nature and purpose' of the use prevailing when the zoning by-law took effect. . . . [citations omitted.] (2) Whether there is a difference in the quality or character, as well as the degree, of use. . . . [citations omitted.] (3) Whether the current use is 'different in kind in its effect on the neighborhood' . . . [citations omitted.]

Applying that test to the "minimum tolerances" test under the "pre G.L. c. 808" statute, Chuckran supra at 24, I find that there has been no change in use of the Building since the Amendment of the By-Law in 1964.

In the present case, the nature and purpose of Eng:ineered's use of the Building in 1964 was to sell its clients' products. Its goal was to convey information about a product to businesses in the area and to facilitate the sale of that product. The work done presently in the Building has a similar nature and purpose. Whether the information conveyed is by means of an advertising brochure or through the presentation by a salesperson makes little difference. The present use by manufacturers' representatives is not "a new enterprise" but the continuation of a business of similar nature and purpose. First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234 , 236 (1975).

Similarly, the quality and character as well as the degree of the use in question have changed little since 1964. Neither the business in 1964 nor the business today have elaborate facilities or complicated equipment. The advertising business did not have printing equipment on the Premises, but relied on visual presentation rather than primarily oral presentation of its clients services and products. The manufacturers' representatives business, to the extent it utilizes the Building for customer contact, relies on the telephone system in the Building while the bulk of such work is on clients' or customers' Premises. I note further that the By-Law's definition of "offices" (pp. 2-8) and the provision for offices in the Table of Uses (pp. 1-8), item number 2, do not differentiate between the former advertizing agency and the present and proposed manufacturers' representatives and, accordingly, I find Plaintiffs present use of the Building to be nonconforming.

Finaly, the business as conducted in 1964 and the expansion proposed will have a similar effect on the neighborhood. In the present case, the business employs a relatively small number of workers and work done within the area of the Building is generally contained within its walls. The proposed use will be an identical use although expanded it does not appear and, there is no evidence that either the present business or proposed expansion has or will have any substantial adverse effects on the neighborhood.

While it is true that in proceedings such as this, the Court, which hearing the matter de novo may not substitute its judgment for that of the Board, Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984); DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985), the decision of the Board must be based upon facts and evidence. While the hearings before the Board were based upon a By-Law which I have found unreasonable, the testimony and other evidence before the Court thoroughly explores the past, present and proposed use of the Building. I find that neither the facts nor evidence support an allegation that the Plaintiff's use or proposed use is different from, other than extent, or will be more detrimental to the neighborhood than the use made of the Premises prior to the 1964 By-Law amendment and accordingly, I find that the extension of use by the Plaintiffs will not be substantially more detrimental to the neighborhood than the existing nonconforming use.

Defendants argue that even if the use by the manufacturers' representatives business is not a substantial change from the use in 1964, the proposed extension under Permit No. 10,592 will be a substantial change due to the increase in size of the business and increase in vehicular traffic in the area. Apart from the aforementioned By-Law, it is well established that a nonconforming use is not different in kind "simply because it is bigger." Cape Resort Hotels. Inc., supra at 214; O'Leary v. Board of Appeals of North Reading, Land Court Dept. Misc. No. 115119 (1986). I find that an expansion of the Building is permitted under the By-Law is not a change in use in and of itself and there is no evidence that the growth of the Plaintiffs' business and proposed activities on the Premises will bring with it a change in vehicular traffic sufficient to be substantially more detrimental than the present nonconforming use.

The Defendants submitted a Post-Trial Memorandum and Plaintiffs have submitted Requests for Findings of Fact and Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

In consideration of all of the foregoing, I rule in summary that the Plaintiffs' use of the Premises is a nonconforming use; and that the Board's decision of April 6, 1984 to uphold the revocation of Plaintiffs' building permit number 10,592 exceeded its authority and must be and hereby is annulled. I further rule that Plaintiffs' proposed use of the Premises is not more substantially detrimental to the neighborhood than the existing use and that such use may be expanded as proposed. I do not order the issuance of a Building Permit inasmuch as the inspector of Buildings is not a party hereto. Plaintiff may proceed as suggested in note 1, should it be deemed appropriate. Finally, there is insufficient evidence to support Plaintiffs claim for damages, which is dismissed.

Judgment accordingly.


[Note 1] Inasmuch as the Town of Stoughton is not a party hereto, Plaintiffs may have 30 days from any final action on the judgment herein should they wish, to amend their complaint to include the Town.

[Note 2] Although the Zoning Act was amended in 1975, the three-part test in Powers has not been changed.