MISC 149615

September 11, 1991

Suffolk, ss.



In Chelsea, as in many communities, when an area zoned for industrial uses adjoins a residential zone, a conflict almost inevitably arises. See Mahoney v. Chelsea, 20 Mass. App. Ct. 91 (1985) and Derby Refining Company v. Chelsea, 407 Mass. 703 (1990). In this instance the latest amendment to the Chelsea Zoning Ordinance classified the locus, a parcel known as and numbered 85 CrescentAvenue, as industrial since it abuts railroad tracks and historically has been used for such purposes. The zoning map (Exhibit No. 4) shows the district line as either the northeasterly line of Crescent Street or the center line thereof. [Note 1] The land owned by the plaintiffs Frank DeSalvo of 68 Cary Avenue in Chelsea in the County of Suffolk and Bernice Keats of 65 Crescent Avenue in said Chelsea is situated in a residential district, but that of the defendant intervener Joseph D. Constantino is within an industrial district. The Chelsea Building Inspector issued two building permits to the intervener, the Board of Appeals by a three to two vote in favor of the appeal by the neighbors, failed to achieve the supermajority necessary to overturn the decision of the Building Inspector, G.L. c. 40A, §15, and the plaintiffs appeal to this Court pursuant to the provisions of G.L. c. 40A, §17.

A trial was held at the Land Court on May 9, 1991 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence, of which there were thirteen (one having multiple parts), are incorporated herein for the purpose of any appeal. Witnesses included a Building Inspector, Stephen Malescuic, Charles Hubner, Jr., a neighbor and an employee of the Chelsea Engineering Department who is familiar with utilities situated within the site, the intervener, the Director of Assessing for the City and the plaintiff DeSalvo.

The principal question of law before the Court is whether the Chelsea Zoning Ordinance can treat nonconforming uses more liberally than the General Laws. There are, however, other interesting questions raised by the appeal. They include a dispute as to whether the proposed uses fall within industrial uses as defined in the ordinance and whether a site plan is required before a building permit issues.

On all the evidence I find and rule as follows:

1. The City of Chelsea conveyed to predecessors in title of the intervener, Luigi Magno and Lucy Magno, the premises at 85 Crescent Avenue described as Lot A on a plan of land by Thomas H. Broglino dated July 18, 1968 and recorded with Suffolk Deeds in Book 8277, Page 71, containing approximately 19,310 square feet and with a frontage on Crescent Avenue as shown on said plan of 179.11 feet (Exhibit No. 11).

2. The plan by Broglino referred to in the deed from the City of Chelsea as recorded with Suffolk Deeds in Book 8227, Page 70 (Exhibit No. 10) does not show Cary Avenue Extension which appears on some of the plans before the Court as a private continuation of the public way Cary Avenue to the abutting railroad tracks. The locus was obtained by the City of Chelsea after a foreclosure of the right of redemption of the prior owner Hyman Rothstein (see Tax Lien Case No. 60720).

3. Although the Broglino plan referred to in the deed from the City of Chelsea does not show a private extension of the public way Cary Avenue, it is shown on the zoning map (Exhibit No. 4), a map of parts of Wards 3, 4 and 5 (Exhibit No. 8C) and the relevant assessors' map (Exhibit No. 5).

4. There is nothing in the title records before the Court to suggest the origin of Cary Avenue Extension which it was stipulated is not a public way. There is, however, a Suffolk Superior Court decision dated May 30, 1974, Equity No. 89829, Corman Realty, Inc. v. Hyman Rothstein et al, in which the court found that the portion of Cary Avenue involved therein (and herein) is a private way no greater than fifty feet in width and that the predecessors in title of the intervener had no right to obstruct or interfere with the access to and from Cary Avenue adjoining the land and building thereon of Corman Realty, Inc. The successors to Corman Realty, Inc. are Matthew DeCarlo and Leona E. DeCarlo who have not taken an active part in the present controversy (Exhibit No. 6). The Corman Realty decision was affirmed by the Appeals Court on procedural ground in 4 Mass. App. Ct. 767 (1976).

5. The plaintiff filed two applications with the Building Department of the City of Chelsea. One of these (Exhibit No. 1) sought a permit to construct a two story concrete building with a steel roof for offices "and construction business." The second (Exhibit No. 2) sought to use the property for the parking of construction equipment. The permits were granted subject to the condition that no dumpsters were to be stored on the premises. The abutters appealed to the Board of Appeals which by a three to two decision voted to reverse the decision of the Building Inspector. However, since G.L. c. 40A, §15 requires a supermajority vote of four to one to overturn an administrative decision, the building permits remained in force.

6. There are several provisions of the Chelsea Zoning Ordinance (Exhibit No. 3) which have been cited as helpful in the resolution of this case.

a) Section deals with nonconforming lots and provides:

Any lots recorded at the time of adoption of this ordinance may be used for any permitted use in the district in which the lot is located, providing that lots which do not conform are used with the minimum nonconformance as to yards as approved by the board of appeals, and provided there was at the time of the effective date of this ordinance no other land under the same ownership available for use, and provided further that any lot on which more than one (1) house existed the time of the adoption of this ordinance may be divided and sold to separate owners.

b) The ordinance also provids that in an industrial district the minimum lot area is an acre and the minimum frontage 150 feet, and that the minimum front yard is 15 feet and the rear yard 10 feet. If the proposed buildings do not comply with those requirements, the Board of Appeals' approval of the nonconformance must be met. However, no plans are before the Court which show the location of the buildings on the lot, and that does not appear to have been an issue before the ZBA. There is a further provision in the ordinance which requires that when an industrial district adjoins a residential district the side and rear yard adjoining the residential district must make the requirements of that district. That provision is inapplicable here since it is the front yard which arguably adjoins and that is not affected by the provision in Section

c) Finally the definition in Section 2.1.10 of a building lot which reads:

any single parcel of land as shown or defined on a recorded instrument or defined by metes and bounds which is designated by its owner at the time of filing for a building permit or certificate of occupancy as a tract to be used, developed or built upon and not including any part of the street.

The parties disagree as to the meaning of the exclusion as set forth in the definition of a building lot, the legal viability of the definition of a nonconforming lot and the applicability of the side yard requirements. They also disagree as to the necessity for a site plan approval. In Section there is a provision that "a site plan shall be approved by the Inspector of Buildings for all uses designated in this ordinance as requiring a site plan before the issuance of a building or occupancy permit for any such use . . . but not including a change of use which does not require new or additional off-street parking spaces." It is unclear to the Court whether a site plan ever was submitted to the Building Inspector, whether it is intended that a site plan be provided if there is no increase in the number of off-street parking spaces required or if the election as to when the plan should be filed, that is before the building permit issues or before the occupancy permit issues, is left to the discretion of the administrative officials since there was no evidence as to Chelsea practice or as to the actual filing of a site plan. I leave this question to the discretion of the Building Inspector when the building permit issues, or at least before any occupancy permit is granted.

The interesting question before the Court and that on which this decision turns is the power of Massachusetts cities and towns to adopt a more lenient nonconforming use provision than that set forth in G.L. c. 40A, §6. In other words the present posture of this question is whether §6 sets a floor beneath which municipalities may not go in prohibiting nonconforming uses or whether it is a ceiling above which they are prohibited from granting to the owner of a nonconforming lot the right to build upon it. I find and rule that §6 provides only a floor and that a municipality is free to grant more liberal treatment to the owner of a nonconforming lot as Chelsea has done in the present case. There are no decisions expressly in point by our appellate courts, but that appears to have been assumed to be the law in several appeals. For example in Weiner v. Board of Appeals of Harwich, 2 Mass. App. Ct. 647 (1974) the Appeals Court dealt with the effect of the Harwich Zoning By-law on nonconforming uses, and it was assumed in the decision that Harwich could have provided broader protection than the general court had granted if it so chose. This decision was pre-chapter 808, but I have no doubt that this same approach would be followed under current provisions of c. 40A. The Land Court has reached a similar result in construing the Brockton zoning ordinance.

The parties have argued about the effect of Cary Avenue Extension on the lot size and whether it is excluded from the computation of lot size by the definition of building lot quoted above. Since Cary Avenue Extension is a private way and not a "street" I find and rule that it is not, but I find and rule further that the intervener is bound to respect the rights of the owner of the abutting property as set forth in the Superior Court decision and that that part of the lot within Cary Avenue Extension may not be built upon. So far as size is concerned, the exclusion or nonexclusion is immaterial since the lot is protected under Section

It is not the size of the lot which is less than one half as large as the minimum lot size that matters here, however, nor the actual frontage on the street which would be less than the requred minimum if Cary Avenue Extension were excluded. The provision of the ordinance which protects nonconforming lots and which I find and rule is valid supports the issuance of the building permits. Accordingly I find and rule that the decision of the Building Inspector must be upheld. However, I point out that the issue of the site plan must be resolved by the administrative officials and that the limitation on the building permits as to dumpsters must be observed by the intervener or risk contempt of court charges. There can be no building or other obstruction within Cary Avenue Extension. Finally I point out that the definition of permitted uses within an industrial district is grounded on "light industry" and that to meet the definition and its subheadings the intervener must limit his occupation to the garaging of construction equipment and offices to carry on his business.

Judgment accordingly.


[Note 1] Section would locate the boundary between zones at the center line of Crescent Avenue and Cary Avenue.