MISC 137166

July 9, 1991

Middlesex, ss.



By complaint filed September 15, 1989 pursuant to G.L. c. 40A, §17, Plaintiffs seek the annulment of a decision of the Zoning Board of Appeals of the Town of Pepperell ("the Board") filed on August 28, 1989 ("the Decision"). The Decision denied an application by Plaintiff, David Babin ("Babin'') appealing a determination by the Pepperell Building Inspector ("the Building Inspector") that Babin was carrying on an unlawful expansion of a nonconforming use in connection with the operation of a commercial greenhouse ("the Greenhouse"). Babin's application, filed on June 14, 1989, further sought a special permit allowing so much of his activity at the Greenhouse as constituted an expansion or extension of a nonconforming use. [Note 1]

By this action, Plaintiffs further seek a declaration that the present use made of the premises on which the Greenhouse is located ("Locus" or "the Premises") and the structures thereon are legally nonconforming. Finally, Plaintiffs seek the reversal of the Building Inspector's order and a special permit allowing the Greenhouse. [Note 2]

On October 2, 1989, Michael Carroll and Joan Peterson, both abutters, filed a Motion to Intervene as party defendants, which Motion was allowed on April 5, 1990.

This case was tried on January 23, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Four witnesses testified and seventeen exhibits were introduced into evidence. Exhibit sixteen was marked for identification only. All of the exhibits are incorporated herein by reference for the purpose of an appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. The Premises contaiing 1.92 acres, are known as 23 Main Street, Pepperell, and are shown as Lot 1 on a plan entitled "Plan of Land in Pepperell, MA," dated August, 1987 and recorded in the Middlesex South Registry of Deeds [Note 3] at Book 18669, Page 47 (Exhibit No. 5).

2. In early 1972, Benjamin Mountain ("Mountain") began a greenhouse and florist business on a 3.9 acre parcel containing the Premises, which parcel was owned by Mountain and his wife. Mountain used the Greenhouse to grow seasonal plants, such as petunias, impatiens, poinsettias, and easter lilies from seeds, bulbs and cuttings. He also handled, but did not raise, nursery stock on a very limited basis, primarily for special orders.

At the outset, ninety percent of the sales made from the Greenhouse were to a flower shop in Groton, the rest to various other flower shops in the area. In 1973, Mountain began selling a few geraniums and bedding plants on a retail basis. In May of 1974, Mountain increased his retail sales significantly. While the amount of retail sales varied; some months he had none, during May retail sales comprised approximately one third of all sales. Of the $13,560.00 in gross sales revenues in 1974, $1,674.50 were designated as retail sales (See Exhibit No. 13).

In 1972, the 3.9 acre parcel contained the Greenhouse with a "head shed", a barn, a shed and a former residence. The "head shed" is a multi-purpose building used as both a work and/or storage area and is, as noted, attached to the Greenhouse. It also serves as a garage.

Until 1974, there was a small gravel parking lot on the Premises which could accommodate three or four cars. At that time, the parking lot was paved and expanded to accommodate twelve cars. Subsequently, in 1988, additional parking was added by relocating the barn. Presently there is available space for parking twenty cars.

In 1972, customer traffic consisted of one or two cars a day. By 1976, the retail business traffic had increased to approximately six cars per day and during holidays there would be anywhere from fifteen to twenty. Plaintiffs maintain that since that time, there has generally been no significant change in the amount of traffic on the premises despite renovations of the Premises. There was no contradictorytestimony.

3. In 1972, the Premises were in a Residential and Agricultural District Zone. In such a district the Zoning By-Law ("the By-Law") allowed "agricultural use including the sale of farm products, the major portion of which is grown on the premises."

4. The By-Law was amended effective February 11, 1974 placing the Premises in a Town Residence District. In such district, private greenhouses are limited to 500 square feet and commercial greenhouses are disallowed unless a special permit is granted. "A salesroom or shop for the sale of orchard, garden, nursery, greenhouse or other farm produce primrily raised on the premies" is also allowed in a Town Residence District subject to a special permit. The Selectmen are the special permit granting authority for such permits. As mentioned above, under Section 174-21(C) of the By-Law, the Board may authorize a change, expansion or restoration or resumption of a nonconforming use. The By-Law has not been altered since February 11, 1974, in any way pertinent to this decision (See Exhibit No. 3).

5. In 1976, Mountain constructed a 2,100 square foot extension of the Greenhouse ("the Extension") and also expanded the attached "head shed" to serve as a retail sales area. At the time of construction, the business was seventy-five to eighty percent wholesale. After the Extension was built the business changed from primarily wholesale to primarily retail. Also in 1976, Mountain began selling nursery stock including azaleas.

Until 1976, Mountain grew no nursery stock on the Premises, other than for occasional sales. In 1976 and thereafter, Mountain grew azaleas for Easter and Mother's Day, at the rate of about fifty or sixty plants per year and occasionally sold Rhododendrons on a special order basis. Christmas trees and greens were seasonably carried.

6. Mountain obtained a building permit for the greenhouse extension in 1976 ("the 1976 Permit"). Before the 1976 Permit was granted and by the request of the Board of Selectmen, he sent a letter ("the 1976 Letter") (Exhibit No. 10) to them describing a proposed change in operations as follows:

Purpose of the construction is to alleviate crowding, provide storage and increase current sales area. . . . My intentions relative to this business is (sic) to expand my retail sales while at the same time continuing the low key appearance within the neighborhood as has been practiced for the past five years. At no time will activity detrimental to the area be conducted.

7. By deed dated November 30, 1978, and recorded at Book 18726, Pages 18 and 19, Mountain and his wife, conveyed thePremises to George C. Kirk and Deborah E. Kirk as Trustees of Kirk Realty Trust ("the Kirks") (Exhibit No. 4). Mountain, his wife and children continued to work at the Greenhouse until sometime in 1985. By 1989, the business had twelve to fifteen employees, Plaintiff, Babin presently works there forty to eighty hours a week.

8. After the conveyance, the Kirks continued Mountain's business and made renovations. Around 1987, they renovated the "head shed" by adding an 8' by 16' controlled temperature area for the cold storage of flowers. Around 1988, they moved the barn on the Premises behind the residential house and converted it into an office. The moving of the barn created the addition parking space discussed in Finding Number 2 above. The free-standing shed was destroyed in an attempt to move it. They also cut down a number of large trees on the property, installed a large sign [Note 4] and increased the retail business by selling shrubs, trees and plants.

For ten months after they purchased the Premises, the Kirks carried on a retail business and grew plants as well as carrying on a nursery business. They sold flowers and greenhouse stock and plants, and bedding plants.

9. Since September 1988, Babin has leased the Greenhouse as a tenant at will and since January of 1989 has taken over the operation of the greenhouse business from the Kirks. His business entails some growing of flowers from seed and some from cuttings. Babin made interior renovations to the barn adding utilities thereto and moved the office and administrative part of the business into the barn from the shed section of the greenhouse and expanded a parking area paved with asphalt providing capacity for an additional six or seven vehicles as stated in Finding Number 2 above.

10. Babin increased the amount of nursery stock handled at the Greenhouse and presently operates a landscaping and snowplowing business from the Premises. Since the filing of the complaint, however, Babin has withdrawn his claim of entitlement to operate either a landscaping or snowplowing business from the Premises. Trees and shrubs are stored outside along the driveway and next to a fence. There is also peat moss, bark mulch, and stone mulch stored outside for sale. The business is presently about five percent wholesale and ninety-five percent retail. Ten or eleven trucks are garaged on the premises. Some, at least, are presumably in connection with the landscaping/snowplowing business. An extensive telephone system has been installed.

11. On May 15, 1989, the Building Inspector wrote Babin a letter stating that the shrubery and landscaping business on the Premises constituted an unlawful expansion of a nonconforming use and those aspects of the business had to cease (See Exhibit No. 7).

12. On or about June 14, 1989, Babin filed an Application for Hearing and Relief with the Board as noted above.

13. By decision filed August 28, 1989, the Board denied Babin's application and further restrained his business (See Exhibit No. 8). The Board ruled, in part, as follows:

The order of the Building Inspector is modified consistent with the foregoing. The uses for which Selectmen's special permits are required shall be immediately terminated and shall not be reinstated unless a special permit issues . . . (and) the use must return to the protected February 11, 1974 (the effective date of the amendment to the By-Law) level immediately. The office must close and the use be converted to one permitted by right. The landscape business must vacate the premises and no operation carried out from the site. Further, there shall be no snow plowing operations out of the site in the future. The sign shall be reduced to a one foot square advertising only the lawful non-conforming use. All related parking shall be removed including the area toward Main Street at the barn office, and this shall be planted with grass or other vegetative cover, and trees of not less than 10 feet in height shall be planted to screen the lawful use from Main Street. This screening shall be placed in the vicinity of the barn and shed as they were located in 1971. This restoration is not to be construed as permission for open lot storage, or as a substitute for the required screening of same.

Babin argues that the use of the property since 1976 is a protected use under G.L. c. 40A, §7. That section provides:

. . . if real property has been improved and used in accordance with the terms of the original building permit, . . . no action (to abandon, limit or modify) the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit . . . shall be maintained, unless such action, suit or proceeding is commenced . . . within six years next after the commencement of the alleged violation of law.

If a permit, or application, very clearly indicates, as through an accompanying plan, the uses to which the proposed structure will be put, those uses will be protected by G.L. c.40A, §7. Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 , 219 (1982). However, if the permit fails to indicate a change in use, the use will be unprotected. Lord v. Board of Appeals of Somerset, 30 Mass. App. Ct. 226 , 228 (1991); Cape Resort Hotels at 217, 219. In the present case, the 1976 letter clearly indicated that there would be increased retail sales at the greenhouse.

Accordingly, I rule that retail sales use of the Premises and any parking incidental thereto as in existence prior to May 15, 1983, are protected under G.L. c. 40A, §7 and all subsequent additional business use and/or activity are in violation of the By-Law.

A question remains as to whether the addition of shrubbery sales is protected under the first paragraph of G.L. c. 40A, §6 which provides, ". . . a zoning ordinance or by-law shall not apply to (a nonconforming structure or use), but shall apply to any change or substantial extension of such use."

The Court in Powers v. Building Inspector of Barntable, 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 a use of property is a "change or substantial extension" of a nonconforming use. Powers, supra at 653, quoting Chuckran. That test is as follows: [Note 5]

(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.]

I find that the shrubbery business is a change in use of the Premises and therefore is subject to the By-Law.

The Town claims that the sign on the Premises is not in conformance with the By-Law. Section 174-34 (A) (2), in a residence district, "A sign aggregating not over six (6) square feet in area pertaining to a permitted use on the premises other than a dwelling or accessory use thereto or pertaining to a use specifically authorized on the premises by the Planning Board." I find that the term "permitted use" includes nonconforming uses and such sign may be maintained provided it is no larger than six square feet.

The Board found the movement of the barn and the creation of the office as well as the use of the Premises for the landscaping and snowplowing business to be substantially more detrimental to the neighborhood than the previous use. It does not appear, however, that the moving of the barn violated dimensional or other requirements of the By-Law. Such finding, therefore must be annulled except insofar as it pertains to the use (as the Board did with the office use), furthermore, as noted above, Babin has withdrawn his claim to run a snowplowing and landscaping business from the Premises, which I will take as a stipulation that he will cease such activities forthwith.

It may well be that Plaintiffs could use the office in such a way as not to violate the By-Law, however, inasmuch as the Board considered the apparently permitted movement of structures as well as the increased use and uses, in making its finding under G.L. c. 40A, §6, I remand this case to the Board to make further findings under G.L. c. 40A, §6, as to the extent of the use of the Premises pursuant to the 1974 Building Permit, prior to May 15, 1983, and whether or not the uses subsequent to May 15, 1983, are substantially more detrimental to the neighborhood than the uses prior to such date. Nothing herein is to imply that Plaintiffs are prevented, in any way, from applying to the Selectmen under the appropriate section of the By-Law for whatever special or other permits they may feel necessary to carry on their business.

Judgment accordingly.


[Note 1] While the Decision denied Plaintiffs' application, it also correctly noted that under Section 174-23.1 of the Pepperell Zoning By-Law ("the By-Law"), the Pepperell Board of Selectmen and Planning Board are authorized to hear special permits and consequently the request for a special permit was improperly before the Board. It appears, however, that the intent of Plaintiffs' application was to appeal to the Board under Section 174-21 (C), for the "change, expansion, restoration or resumption of a nonconforming use," which activities do not require a special permit and may be granted by the Board provided the G.L. c. 40A, §6 provisions are met.

[Note 2] Plaintiffs' request for a declaration that the Greenhouse is a nonconforming use might properly be characterized as an appeal under G.L. c. 240, §14A, in which case the Town of Pepperell is a necessary party to this proceeding, unless the Building Inspector is named. Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475 (1979). However, inasmuch as the issue of the extent of nonconformity was properly before the Board, I will make a ruling based on the present appeal from the Board.

[Note 3] Unless indicated to the contrary, all recorded instruments are located in this Registry.

[Note 4] There is no evidence before the Court as to the dimensions of the sign.

[Note 5] Although the Zoning Act was amended in 1975, the three-part test in Powers has not been changed.