Home ROBERT MARSHALL and RICHARD J. WOJICK, Trustees of the Womar Realty Trust vs. TOWN OF BURLINGTON.

MISC 138429

October 14, 1992



Plaintiffs seek to establish that parking for their office building (the Office Building) in the Town of Burlington (the Town) may be located on an adjoining lot (the Adjoining Lot). The Office Building is in a Business District under the Town's Zoning By-Law (the By-Law) and the Adjoining Lot is located in a Residence District.

In the Complaint (Count I) Plaintiffs justified the use of the Adjoining Lot as a prior non-conforming use, but they have abandoned that theory and consent to the entry of Summary Judgment in favor of the Town on Count I and I accordingly so find. By their Amended Complaint, Plaintiffs advance a Count II, which justifies the use of the Adjoining Lot by the six year limitation contained in G. L. c. 40A, §7 (the Six Year statute). Both parties have moved for Summary Judgment on Count II. Counsel argued the motions on April 14, 1992.

The following submitted Affidavits in conjunction with the Summary Judgment Motions or earlier Motions for injunctive relief: Plaintiff, Robert Marshall (3); Andrew Ungerson, the Town's Building Inspector since 1988; Marie George, a neighbor; and Francis Moran (2), Building Inspector from 1971 (presumably until Mr. Ungerson took office). In addition, the original Complaint was verified.

I find and rule for the Town, as follows:

1. The lot on which the Office Building stands (the Office Building Lot) is at the corner of Winn Street and Winnmere Avenue in the Town. It contains about 12,290 square feet and is in a General Business District. The lot and the Office Building are known as 69 Winn Street and were acquired by Plaintiffs in February, 1989 (Exhibit B to Complaint).

2. The Adjoining Lot, which is also known as Lot 68-1, adjoins the Office Building Lot to the north, on Winn Street. It contains about 9026 square feet and, with another parcel, was acquired by Plaintiffs in March 1989 (Exhibit C to the Complaint). The Adjoining Lot has been in a One Family Dwelling (RO) District since 1943.

3. Plaintiffs allege:

a. In 1971, both the Office Building Lot and the Adjoining Lot were owned by the Parson Realty Trust. In February, 1971, the Parson Realty Trust applied to the Town for a building permit for the construction of the Office Building, a 2 1/2 story structure. Attached to the application to build was a sketch of the parking plan for the proposed building.

b. The By-Law then provided that businesses such as service establishments and retail business had to have one parking space for each three hundred square feet of floor area (Section 21.5 (5) of the By-Law).

c. That section 21.5(5) of the By-Law applied to the Office Building and that the Town understood it to apply, are shown by the Town's notation on the sketch attached to the application, that, given the size of the building to be constructed, 22.26 parking spaces were necessary to comply with the By-Law.

d. No variance with respect to parking was sought.

e. The application, even though it showed only 15 parking spaces on the Office Building Lot, was granted and a building permit was issued.

f. The Town does not keep copies of building permits on file and, therefore, the building permit for the Office Building is unavailable.

g. At the same time as the construction of the Office Building, a parking lot was constructed on both the Office Building Lot and the Adjoining Lot.

h. At the same time, a retaining wall was constructed along the entire Winn Street frontage of both lots with no demarcation of use or otherwise between the two lots.

i. A Certificate of Occupancy was issued by the Town in 1971 and the Office Building has been used continuously as an office building since that time.

j. The entire parking lot (including the Adjoining Lot) was used as a parking lot between 1976 and 1981. The use of the parking lot ceased only upon the construction of a stockade fence between the Office Building Lot and the Adjoining Lot after July 8, 1981.

k. While the Town in the 1970's responded to and complained of alleged zoning violations due to a failure to have adequate screening between the Adjoining Lot and the Office Building Lot, as residential and commercially zoned property, respectively, it never took any action prior to May 27, 1981 (more than ten years after the building permit was issued) with regard to any alleged violation of the By-Law relating to parking on the Adjoining Lot.

l. On May 27, 1981, the Town gave its first notice that it deemed the Adjoining Lot to be unavailable for parking. Even then no action, suit, or proceeding was commenced to enjoin the use.

m. After Plaintiffs purchased the two lots in 1989, they recommenced use of the parking lot on both lots but stopped by November 1989 under threat of fines.

n. At no time has the Town recorded at the Registry of Deeds for the Southern District of Middlesex County any notice of any alleged violation of the provisions of General Laws, ch. 40A with respect to parking on the Adjoining Lot.

o. The owners of the Adjoining Lot between 1981 and 1989 ceased using it as a parking lot only because of the insistence of the Building Inspector and did not voluntarily cease such use.

p. Plaintiffs bought the Adjoining Lot believing it could be used for parking.

q. There is no on-street parking available on the streets surrounding the Office Building Lot.

r. The businesses in the Office Building need the Adjoining Lot as parking for their employees and customers. These businesses included offices of lawyers, physicians and other professionals.

s. At the request of the Building Inspector a fence was installed in 1977 along the westerly boundary of the Adjoining Lot to screen it from neighboring residential property.

t. Five parking spaces along the Winn Street boundary of the Office Building Lot, which appeared on the preliminary plan attached to the original building permit application, were never constructed and the area for them has been in grass ever since the Office Building was constructed.

4. The Exhibits (A through K) to Plaintiffs' Memorandum of Law in Support of Plaintiffs' Motion For Summary Judgment On Count II, filed November 25, 1991, are, by stipulation of counsel, admitted into evidence.

5. At the time the Building Permit was granted, the following provisions of the By-Law were in effect:

21.0 Off-street parking and loading areas shall be required in at least the ratio specified below for the listed uses of land and buildings:

21.5 (5.) Other Service Establishments and Retail Businesses - Parking spaces shall be provided, excluding driveways, in a proportion of one parking space for each three hundred square feet of gross retail floor area, excluding basement storage areas.

21.7 (7.) Other uses requiring off-street parking and loading spaces shall be determined by the Building Inspector.

Required off-street parking and loading spaces shall be located on the same lot as the use they serve except that parking spaces may be on another premise within 200 ft. of the lot and within the same Zoning Districts; shall not be reduced, shall have adequate vehicular access to a street, shall contain a minimum of 200 sq. ft. for each vehicle exclusive of drives and access ways, except that a driveway may be considered as parking space for a single residence dwelling, and shall not be included as part of the requirement for two buildings or uses unless the Building Inspector shall determine that such uses do not occur simultaneously.

The provisions of this Section which limit credit for parking spaces to those within 200 ft. of the individual lot shall not apply to those lots which with the building or business thereon, are parts of a multi-business shopping center type building complex.

22.1 (1.) Screening, in accordance with an approved site plan, shall be provided, erected and maintained to shield business and industrial uses of land and buildings from adjoining residential or municipal properties.

6. There was no provision expressly dealing with parking requirements for office uses.

7. The plan attached to Parson Realty Trust's 1971 building permit application for the Office Building showed only the Office Building Lot; there was no mention made of the Adjoining Lot.

8. The Town takes the position that the zoning applicable to the Office Building in 1971 was Section 21.7.(7) of the By-Law and that pursuant to that section, 15 spaces were required.

9. In early 1989, D.P. Jacobs of Womar Realty Trust applied for a building permit for interior alterations in the Office Building. When reviewing the application, Building Inspector Ungerson made a notation on the plan of 69 Winn Street that had been on file in my office since 1971. The notation reads as follows:

"1 parking space/300 S.F. = 22.26 parking spaces required."

This notation references Section 7.2.10 of the Zoning By-law which was in effect in 1989. At no time did Mr. Ungerson require additional parking beyond 15 spaces.

10. The Six Year Statute provides:

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 by-law adopted thereunder, 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 six years next after the commencement of the alleged violation of law;

11. At the hearing counsel agreed that the burden is on Plaintiffs to show they come within the protection of the Six Year statute.

12. I have made various findings and rulings above. Paragraph 3 sets forth various allegations of Plaintiffs. I find that all those allegations are true except for Subparagraph c. Plaintiffs suggest that the notation on the plan accompanying the application shows an understanding that 22.26 parking spaces were required in 1971. There is nothing in any of the material properly before me under Rule 56 which supports that assertion. The plan attached to the Permit application (Exhibit E to Plaintiffs' Memorandum) has no such notation. The plan attached to a 1977 letter (Exhibit G to Plaintiffs' Memorandum) does contain the notation.

13. Building Inspector Ungerson stated in his Affidavit that he put that notation on in 1989. However, even without relying on that, the most that Plaintiffs can make out of the notation is that at sometime after the filing of the application, someone made the notation.

14. Plaintiffs argue that the 1971 Building Inspector understood that 22.26 spaces were required, only 15 were provided on the Office Building Lot, and that therefore the use of the Adjoining Lot for parking was implicit in the issuance of the building permit. Plaintiffs have not produced any substantiation for the first premise or, passing that, any support, beyond conjecture, for the conclusions they draw.

15. Plaintiffs argued at length that in 1971 §21.5 (5) of the By-Law applied and not §21.7 (7), which puts the number of spaces in the determination of the Building Inspector, as suggested by the Town. However, even if §21.5 (5) applies the By-Law also provides that required parking must be on the same lot or "on another premise within 200 ft. of the lot and within the same Zoning District."

16. The same parking space ratio - one space for each 300 square feet of gross floor area - as is now expressly required for "office uses" under §7.2.10 of the By-Law was contained in former §21.5 (5) "Other service establishments and Retail Businesses", except that the older section referred to "gross retail floor area".

17. I conclude, agreeing with the Town, that in 1971 the parking for the Office Building was governed by §21.7.(7).

18. Plaintiffs may properly cite Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982) for the premise that a building permit may be reconstructed from an application and attendant documentation, but that case does not carry Plaintiffs any further. The layout which accompanied the application in Cape showed "very clearly" (p. 219) what use was to be made of the area in question. Here the application shows nothing of the sort.

19. There is no genuine dispute as to any material facts in this action (indeed, counsel so stipulated at the hearing). Plaintiffs have not met their burden of showing they come within the protection of the Six Year Statute. Plaintiffs are not entitled to use the Adjoining Lot for parking accessory to the Office Building.

Judgment accordingly.