The principal question to be decided by the Court in this litigation brought by the Building Inspector of the Town of Sudbury to enforce its zoning laws, posed in soap opera terms, is whether a landowner's use of its premises since at least 1968 without objection from the Town of Sudbury is now at peril because homes have been built in its general vicinity. The plaintiff and the intervenors who are residents of the neighborhood and who were allowed by the Court to appear in this controversy, argue that while the defendant Maynard Rod & Gun Club is not changing its operation, does not seek to build a new building and in fact is not instigating any new activity, it is subject to periodic review by the Board of Appeals of the Town of Sudbury. The defendant argues that it is protected by the provisions of G.L. c. 40A, §6, that the permit issued by the Board of Appeals of the Town of Sudbury ("ZBA") in 1983 for a period of two years was impermissibly limited in time and it is not compelled to seek the issuance of a new permit. The Building Inspector and the neighbors argue conversely that the Club's use is not protected as nonconforming and that the past history of municipal action other than the 1983 permit is of no consequence.
A hearing was held at the Land Court on November 19 and 20, 1991 at which a stenographer was appointed to record and transcribe the testimony. A view was taken by the Court in the presence of counsel on February 19, 1992. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial the present Building Inspector of the Town of Sudbury, John Barton Hepting, and the Building Inspector at the time this action was commenced, Joseph E. Scammon, were witnesses for the plaintiff as were neighbors, Clifford Johnson, Gerda Maaskant, Holley Ann Cannon. Witnesses for the defendant Club were Stanley C. Sofka, a long time member of the Club, Chief Arner S. Tibbetts, Police Chief for the Town of Maynard and Peter B. Lembo, Police Chief for the Town of Sudbury.
On all the evidence I find and rule as follows:
1. The applicable zoning by-law is unusual. Commencing in 1936 the by-law provided as follows:
The removal of sod, loam for sale, except when incidental to, and in connection with the construction of a building for which a permit has been issued by the selectmen, or the use of land for a cemetery, playground, picnic ground for educational purposes or recreation field, shall be allowed only of the Board of Appeals shall rule that such removal or use is not detrimental to the neighborhood.
The meaning of this early version is unclear. It is certainly arguable it may have prohibited both the removal and such use without a finding by the Board of Appeal that the removal or use was not detrimental to the neighborhood. Over the course of the next several years the language was changed in ways not material here until 1965 when the removal of soil was eliminated and Section 8 read as follows:
The use of land for a cemetery, playground, picnic ground, for educational purposes or recreational field, shall be allowed only if the Board of Appeals shall rule that such use is not detrimental to the neighborhood. The provisions of this section shall not apply to the use of land by the Town for municipal purposes.
2. It was in 1969 that the language was rewritten to read as follows (Exhibit No. 11):
E. CERTAIN OPEN SPACE AND EDUCATIONAL USES
The use of land and buildings thereon for a playground, picnic ground, for educational purposes or recreation field, or for private nursery school/kindergarten or specialty school, shall be allowed in any zone of the Town, provided that a site plan submitted in accordance with Article IX, Section V,A has first been approved by the Board of Selectmen and then a permit has been issued for such use by the Board of Appeals. A permit may be issued provided the Board of Appeals shall find that:
1) The proposed use is not detrimental to the neighborhood, and
2) The use will not significantly alter the character of the zoning district, and
3) Such use does not nullify or substantially derogate from the intent or purpose of any other section of this by-law.
Permits issued under this paragraph shall be for a period not exceeding two years and may be renewed. The provisions of this section shall not apply to the use of land by the Town for municipal purposes.
For the first time then the language relative to the two years' duration was inserted and the selectmen's approval was required.
3. In 1985 or 1986 the provisions of Article IX, Section 9 IE (now lF) were again amended to read as follows (Exhibit 11 and Exhibit 10):
The use of land and buildings thereon for a playground, picnic ground, for educational purposes or recreation field or for private nursery school/kindergarten or specialty school, shall be allowed in any zone of the town, provided that a permit has been issued for such use by the Board of Appeals and a site plan submitted in accordance with Article IX, Section V,A has been approved by the Board of Selectmen.
The two year term continued in force.
4. The Club was organized in 1930; the purposes for which the corporation was formed were "for propagation and protection of fish and game, the enforcement of the Fish and Game Laws, encouraging sports and promotion of the social welfare of its members, and for acquiring and maintaining the necessary real estate and other property necessary or incidental to those objects." (Exhibit No. 34). The corporation was still legally existing as of the date of the trial (Exhibit No. 33).
5. The Club acquired its real estate of which it presently owns approximately 47 acres in Maynard and a like amount adjoining its Maynard property in Sudbury by the following deeds: a) a deed from The Inhabitants of the Town of Maynard, dated November 9, 1944 and recorded with Middlesex South District Deeds (to which Registry all recording references herein refer) in Book 6820, Page 289 conveying land in Maynard (Exhibit No. 35); b) a deed from Daniel J. Hayes et al dated April 15, 1947, recorded in Book 7151, Page 453 conveying land in Sudbury (Exhibit No. 37); c) a deed from Emma P. Scott et al dated May 15, 1949, duly recorded in Book 7441, Page 216 (Exhibit No. 38); d) a deed from The Inhabitants of the Town of Sudbury dated June 21, 1949, recorded in Book 7455, Page 519 conveying land in Sudbury and being the same premises conveyed apparently by the Scott deed (Exhibit No. 39); e) a deed from Grace P. Reynolds dated August 13, 1971, recorded in Book 12054, Page 696 conveying land both in Maynard and Sudbury (Exhibit No. 40); and f) a deed from Herminia DiGeronimo dated August 25, 1977, recorded in Book 13286, Page 573 conveying land in Maynard (Exhibit No. 41).
6. The Sudbury property acquisitions all occurred prior to September of 1971 and the bulk of the real estate in Sudbury was acquired in the 1940's. The locus is zoned for residential purposes; it at one time was close to the Sudbury dump, and it is unclear whether locus was industrially zoned originally as was abutting property.
7. Originally the shooting ranges were situated in Maynard, but it is unclear whether the ranges faced the Sudbury portion of the real estate and shooting took place in the direction of the Sudbury land. From the view of the premises that would appear to have been the case.
8. In the late 1960's or early in 1970 the decision was made to construct a clubhouse on the Maynard property for functions of the Club or others to whom it might be leased and to relocate the two ranges to the Sudbury land.
9. In 1971 the executive secretary of the Town of Sudbury notified the Club that before the installation of a proposed pistol and rifle range on the Sudbury property a site plan must be submitted to and approved by the Board of Selectmen of Sudbury (Exhibit No. 21). No mention was made then or at any time prior to 1983 of any requirement that a permit be obtained from the Board of Appeals.
10. Accordingly the Club acting through the chairman of its executive board applied for a trap and skeet range in Sudbury by letter dated June 24, 1971 (Exhibit No. 19). By letter dated June 30 of that year the clerk of the Board of Selectmen notified Mr. Trumbour that the Board of Selectmen unanimously had voted to grant permission to the Club to construct a trap and skeet range on land owned by it in Sudbury. The letter concluded that "This letter is your permit and should be retained permanently in the records of the Maynard Rod & Gun Club."
11. The Board of Selectmen also granted permission by letter dated June 4, 1971, also stated to be the Club's permit, to operate a rifle and pistol range on that portion of the Club's land in the Town of Sudbury. Both permits from the selectmen were unlimited in time.
12. In 1983 the Club wished to construct a building for the shooters' comfort. To comply with the Building Inspector's requirement the Club in 1983 applied to the selectmen for site plan approval by application dated August 29, 1983 to which there were attached copies of the 1971 letters granting permission to construct the rifle and skeet ranges. Presumably a building permit also was obtained. The area of locus was given as approximately 38 acres and described the construction as "a proposed recreation shelter". A site plan shows the building to be approximately 24 feet by 40 feet with an eight foot porch with no change from the present use in the activities on the locus. Later that year on October 31, 1983 the Club also applied for a special permit for recreational and educational purposes. The application for site plan approval is Exhibit No. 16 and for special permit is Exhibit No. 27.
13. By a decision dated October 31, 1983 the Board of Selectmen granted the site plan approval (Exhibit No. 14).
14. The hearing on the application for special permit by the ZBA was held on December 13, 1983 (Exhibit No. 13). At the hearing the Board gave as its reasons for granting a special permit the following:
The petitioner is seeking a special permit under Section I,E of the Zoning Bylaw which allows the use of open spaces for recreational purposes. The property in question comprises 47 acres in Sudbury and 47 acres in the adjoining town of Maynard. The proposedrecreation is that of trap, skeet and target shooting. The area in question is heavily wooded and there are no residences in any reasonable distance; the nearest road being approximately 400 feet away.
The Board finds that the proposed use will not be detrimental to the neighborhood and the use in question will not alter the character of the zoning district in that the present use has been going on for approximately 15 years; nor does the use nullify or substantially derogate from the intent of the bylaws in that this is such a large area.
(Exhibit No. 13).
15. Prior to the approval by the selectmen of the site plan the Building Inspector in effect had approved the site plan, that is, he had recommended approval of the plan, but he recited that in his opinion the Board of Appeal's approval to use the site for recreational purposes was necessary under the zoning by-law.
16. The decision granting the relief which the Club sought from the ZBA did not refer to any time limitation.
17. At some time after the construction of the new ranges the area surrounding the Club became the subject of at least two developments, and building continues in the general neighborhood. The road which parallels the Club is at least 400 feet distant from its ranges, and the homes are beyond that. There are also homes to the north of the Club at a considerably higher altitude. In viewing the premises I was struck by the distance between the homes and the activities on the Club property which were at a greater distance than I had envisioned during the trial from the testimony. All houses appeared to be more than 400 feet away. The houses to the north of the shooting range are located on a hill well above the ranges, and while it is possible that the rough surface of the hill into which the shooters' aim might cause bullets to ricochet there was no evidence that this has happened. There was one documented incident in which a pistol used by an M.C.I. Concord officer deflected and was found at 145 Waltham Street in 1987 (Exhibit No. 42).
18. The Sudbury By-law provides that the site plan approval and the special permit have a duration of only two years. Neither permit issued to the Club in 1983 contains any such limitation, nor did those in 1971. The Club accordingly took no action to renew the permits until prodded by the Building Inspector.
19. By letter dated September 25, 1987 (Exhibit No. 9) the Building Inspector notified the Club that the special permit had expired, and this letter was followed by one from the secretary of the Board of Appeals enclosing the application form for renewal of the special permit (Exhibit No. 8). The by-law does not require a new site plan.
20. A public hearing was held on December 8, 1987 by the ZBA. The minutes of the ZBA hearing in which the positions both of the Club and of the abutters are set forth at length reveal that noise and safety are neighborhood concerns. This was emphasized also at the trial de novo where another concern of the abutters arose from the possibility of trespass by children or others on the Club property which is not presently fenced around its entire circumference, and in some instances the fencing is inadequate to bar persistent children.
21. The ZBA unanimously allowed the Club to withdraw without prejudice its petition for renewal of its special permit to allow the continued use of the property for recreational and educational purposes, specifically rifle, pistol, skeet and trap shooting (Exhibit No. 5).
22. There have been attempts by the Club and the intervenors to work out a satisfactory pattern of conditions which might be presented to the Board and presumably the selectmen for approval, but negotiations have not been successful. The Club also has attempted to modify the shooters' den to provide soundproofing, but whatever attempts it has made have not satisfied the intervenors. A tape was offered in evidence made at the home of one of the intervenors, but I excluded it from evidence since its accuracy had not been verified and noise levels are a matter of personal auditory sensitivity. The Court also was concerned by the acoustics in the courtroom and the home in which it was recorded and the possibility that the sound would not be faithfully reproduced.
23. The Club has engaged in numerous educational activities including classes for children in the towns that it serves on safe use of fire arms. In addition, the police departments of Maynard and Sudbury have used the Club to give their officers an opportunity to hone their marksmanship skills and to enable them periodically to qualify. Other police bodies including the state police and employees of Massachusetts correctional institutions have been allowed to make use of the ranges.
The Sudbury By-law is unusual in that it has regulated a diverse group of activities since 1936. It further is clear that the provisions of G.L. c. 40A, §3 militate against the application of the by-law to many institutions. I do not find, however, that the educational activities in which the Club has engaged have been such as to insulate it from the provisions of the by-law if it is otherwise valid. The purposes of the Club as set forth in its articles of organization do not specifically refer to education, and while it would have been possible to frame them in such a way as to include as principal purposes not only the instruction in the art of the use of guns, but the education of members and other in related topics including nature studies, this was not done in 1930 when concerns were different. However, on this record and on the purposes as set forth in the articles of organization I find and rule that the dominant purpose of the Club was recreation for its members and an increase in their skills although it serves a very useful purpose in providing local police departments as well as the state police and correctional officers an opportunity to retain their marksmanship. This is not a case like Worcester County Christian Communications v. Board of Appeals of Spencer, 22 Mass. App. Ct. 83 (1986); although I accordingly recognize that the statutory protection under Section 3 of 40A is not restricted to religious sects and educational institutions, it is my opinion, and I so hold, that the Club is without these provisions of Section 3 even though Gardner-Athol Mental Health Association v. Zoning Board of Appeals of Gardner, 401 Mass. 12 (1987) makes it clear that education need not be the dominant purpose or even the principal activity of the corporation so long as the articles of organization authorized its engaging in educational activities. The present articles do not refer to what I would hold to be educational activities, either specifically or within the latitude recently suggested in Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152 , 156 (1992).
The principal questions to be determined in this complaint brought by the Building Inspector is whether under G.L. c. 40A, §6 the activities of the Club are protected from the requirement that every two years a new special permit from the ZBA be obtained. Another question presented to the Court is whether under G.L. c. 40A, §7 the statute of limitations bars the present complaint and thirdly, the Court must determine whether the prior course of conduct of the town officials has been such that the Club is protected. There is also the ancillary question as to whether the enabling act countenances a two year time limitation on the special permit and if so, whether it is an unreasonable length of time in this context.
I. Nonconforming Use
The Sudbury By-law has required permission from the Board of Appeals for activities within the educational/recreational field since 1936, but it was not until 1969 that the two year time limitation was adopted. Under Shrewsbury Edgemere Associates Limited Partnership v. Board of Appeals of Shrewsbury, 409 Mass. 317 (1991) it was held that an amendment of a zoning by-law which changed the use of the premises for a stated purpose as a matter of right to a use only after the issuance of a special permit made the use nonconforming. The present case demonstrates as well that the imposition of the two year limitation is a change which would render the pre-existing use nonconforming if indeed there were such pre-existing use. Sudbury points to the fact that the two ranges were not moved to Sudbury until 1971. However, it is clear from the record that the Sudbury land comprising the holdings of the Club and which was used in conjunction with the ranges in Maynard has been devoted to this purpose for many years prior to 1969. Even though the ranges themselves were located in Maynard during the early years, it seems inescapable that some of the activity made its way into Sudbury. Accordingly I find that the general use by the Club of its Sudbury land for its corporate purposes is protected as nonconforming and does not require periodic review by either the Board of Selectmen or the ZBA.
The construction of the building for the shooters in 1983, however, falls into a different category since while the use of the property was protected under what is now G.L. c. 40A, §6 the construction of a new building would clearly constitute an extension which requires under G.L. c. 40A, §6 a finding by the special permit granting authority designated by the by-law that such extension "shall not be substantially more detrimental than the existing nonconforming structure or [use]to the neighborhood". This was the real purpose of the 1983 hearing and decision by the ZBA and clearly appears to be correct. The limitation which is placed on the use, however, is not. Whatever may be the law as to the duration of a special permit issued pursuant to G.L. c. 40A, §9, Hopengarten v. Board of Appeals of Lincoln, 17 Mass. App. Ct. 1006 (1984) which held that a ham operator's radio tower could be limited to a duration of three years in the interest of public safety, a different rule applies as to Section 6 extensions. G.L. c. 40A, §9 does indeed provide that special permits "may also impose conditions, safeguards and limitations on time or use". However, this provision cannot cut across the rights found in Section 6, which requires only a finding that the extension will not be substantially more detrimental to the neighborhood, that finding was made in 1983 and the enabling act which is controlling provides no mechanics for loss of a nonconforming use or a permit granted under Section 6 after any specified number of years.
It should be noted that Section 6 has been difficult to construe. I have assumed that it sets forth the minium tolerance a by-law must afford a nonconforming use; but that a community can be more tolerant if it so elects. The Appeals Court now has rejected this position in McLaughlin v. City of Brockton, 32 Mass. App. Ct. 930 (1992), a result which led at least one commentator to suggest the General Court should replace local zoning ordinances and by-laws with a uniform state code.
II. Special Statute of Limitations
As a result of considerable pressure from the organized bar the General Court has in effect adopted a statute of limitations which apply to zoning matters and is found in Section 7 of Chapter 40A. The first limitation on actions which is found in Section 7 reads:
provided, further, that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or bylaw adopted thereunder, shall be maintained unless such action, or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law.
None of the building permits issued to the Club were in evidence, and accordingly I make no fnding as to the applicability of this portion of Section 7. Section 7 now goes on to read, however, as follows:
and provided further that no action, criminal or civil, the effect or purpose of which is to compel the removal, alteration or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, of the conditions of any variance or special permit shall be maintained unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within ten years next after the commencement of the alleged violation.
This amendment is applicable here.
The enforcement by the Sudbury officials from the acquisition by the Club commencing in 1947 of locus and the construction of the ranges in 1970/1971 concentrated on the approval by the Board of Selectmen of the Club's activities in much the same way that they control the grant of numerous licenses within a town. There was no inkling afforded to the Club when the site plan approval was given by the selectmen that approval of any other body was necessary. It is quite clear to me that this brings into play the doctrine of Chilson v. Zoning Board of Appeal of Attleboro, 344 Mass. 406 (1962) if in fact it was necessary for any further approvals to have been obtained prior to 1983. In 1983 the Building Inspector was correct in requiring the Club to obtain a special permit since the erection of a new building customarily is deemed an extension of a nonconforming use. I find and rule, however, that having now obtained that special permit it is a Section 6 permit and need not be renewed. Accordingly I find and rule that the plaintiff need not apply to either the Board of Appeals or to the selectmen in order to continue its existing activities. I have not dealt specifically with the site plan approval since it apparently is not again required from the selectmen, but since there is no change contemplated in the use which would indeed require Section 6 approval, I can see no justification for requiring further municipal approval.
It is unfortunate that real estate developers chose to build homes in an area close to the Club where it had been located for many years. The Court suggests that the parties work together to resolve any questions of public safety in a manner reasonably satisfactory to the neighborhood, the Club, law enforcement agencies and the town.