RENE A. LaBATTE vs. NANCY von KITTLITZ, WAYNE A. BELAIR, RAOUL A. ST. GERMAIN, DAVID DONAHUE, and DAVID ROSE, as they are the BOARD OF APPEALS of THE TOWN OF AMESBURY.

In the action first filed in this matter Rene A. LaBatte, the plaintiff, appealed from the decision of the Board of Appeals of the Town of Amesbury (the "ZBA"), denying him a finding pursuant to Section lXB of the Amesbury Zoning By-law (and G.L. c. 40A §6) which would enable him to construct an indoor and outdoor miniature golf course at 36 Sparhawk Street in said Amesbury.

The second case concerns the extent to which the zoning by-law affects the plaintiffs' land and was brought pursuant to G.L. c. 240 §14A and c. 231A §1.

In Miscellaneous Case No. 166188 I am remanding the matter to the ZBA to hold a new hearing and to enter a decision as to the plaintiffs' entitlement to a special permit dependent upon the finding as to whether the proposed use is substantially more detrimental to the neighborhood. During the new hearing both Nancy von Kittlitz and Edward DuGay are to recuse themselves and associate members of the Board are to sit in their stead. The Land Court will retain jurisdiction.

A trial was held at the Land Court on June 25, 1992 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. Witnesses called by the plaintiff were Nancy von Kittlitz a member of the ZBA and its former chairperson and Joseph M. Hart, an expert appraiser. The ZBA called as its sole witness Timothy Haskell, Coordinator for the Town of Amesbury.

On all the evidence I find and rule as follows:

1. The locus is a lot containing about 38,262 square feet and having a frontage of 228 feet with an existing one story building, now known as and numbered 36 Sparhawk Street in said Amesbury, situated thereon.

2. The building on the plaintiffs' land was constructed in 1908 and has been used for a variety of business uses in the intervening years. Zoning was first adopted in Amesbury in 1908, and the neighborhood in which the locus is situated was zoned R-8, a residential district.

3. The use of the plaintiff's property at the time of the adoption of the first zoning by-law was nonconforming. Since 1971 it has been used for a variety of nonresidential uses. Chronologically the ZBA has granted variances or special permits in recent years (no evidence being introduced as to the period from 1971 to 1984) to permit the locus to be used for a redemption center for bottles and cans, a karate studio and an expansion thereof, the display and retail sale of up to thirty late model and collectors' used automobiles and a recording studio and teaching of music. At some time a transmission shop occupied the premises and the uses for which permission was sought were viewed as more favorable by the ZBA.

4. In January of 1991 someone other than the plaintiff applied for the right to use the premises for a Cloud 9 limousine service, but the applicants failed to appear before the ZBA to press their application.

5. There is a severe drop off of the lot of about twenty feet. Approximately two-thirds of the building is on high ground, and the remaining portion has a high foundation. The area affected by this terrain commences about forty-five feet from the fence. Of the 38,262 square feet comprising locus only about 12,000 square feet is at or above grade.

6. The plaintiff acquired the locus for $120,000 from a foreclosing mortgagee, The Family Mutual Savings Bank by deed dated March 11, 1991 and recorded with Essex South District Deeds, Book 10749, Page 498. The assessment as of January 1, 1990 was $243,000 and as of January 1, 1991, $223,500.

7. The premises physically could be converted to a single family home at the approximate cost of $90,792 plus the purchase price of $120,000. Should the existing structure be demolished, and a new single family home built, the cost would approximate $88,320 to which base the purchase price again must be added.

8. The R-8 district in which locus is situated consists mainly of single or multi family homes and institutional uses including a Catholic church, rectory, school and convent, municipal properties and service facilities, such as a nursing home, gasoline station, a funeral home. There are buildings with lawyers', doctors' or dentists' offices on the street floor and apartments above, and municipal uses such as the police station, the fire station and the school department. Multi and single family residences abut the site and immediately across the street is the church property and the medical and dental offices. The district as a whole is appropriately zoned.

9. Section lX B of the Amesbury Zoning By-Law relating to the extension or alteration of nonconforming uses reads as follows:

Extension and Alteration:

1. 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 Board of Appeals that such change, extension, or alteration shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

2. Any nonconforming structure or portion thereof which has come into conformity shall not again become nonconforming.

10. This section 1X B tracks G.L. c. 40A §6 in part but in section 1X E of the by-law "change" is treated differently from other modifications of a nonconforming use. This provision reads:

Change:

1. Any nonconforming use of a structure may be changed to another nonconforming 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 Permit by the Board of Appeals.

2. Any nonconforming use which has been once changed to a permitted use or another nonconforming use which is not a substantially different use shall not again be changed to another nonconforming use.

3. Any nonconforming lot which has come into conformity shall not again be changed to a nonconforming lot.

11. The decision of the ZBA denying the plaintiff the relief he sought was based solely on the by-law provision that a non-conforming use once changed to another nonconforming use cannot again be changed. It made no finding as to the statutory test that a nonconforming use may be altered, extended or changed so long as the new use is not substantially more detrimental to the neighborhood.

12. An associate member of the ZBA is an abutter to locus and engaged in litigation with the plaintiff. His counsel in the litigation was the chairperson of the ZBA at the time of the decision and now is a member thereof, It is not clear whether the litigation had commenced at the time of the hearing. In any event it is clear that at the hearing to be held pursuant to the order of remand both Mr. DuGay and Ms. von Kittlitz must recuse themselves.

G.L. c. 40A §6 provides that "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 on the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming ("structure or": see Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987) use to the neighborhood." "Change" as used therein relates back to the first sentence of section 6 where there is reference to "any change or substantial extension of such use" or a "structural change."

The problem with the Amesbury by-law is that it recognizes the statutory provisions so far as extensions or alterations are concerned, but it deviates from section 6 in imposing a limitation on the number of times a nonconfarming use may be changed. Section 6 does not. Neither does the by-law make express the statutory test, "substantially more detrimental" as applied to changes in nonconforming uses. See Shrewsbury Edgemere Associates Ltd. Partnership v. Board of Appeals of Shrewsbury 409 Mass. 317 (1991). The by-law and the statute must be read together harmoniously in such a way, if possible, McLaughlin v. Brockton, 32 Mass. App. Ct. 931 (1992) as to preserve the by-law. Activities which constitute a "substantially different use" as defined in the by-law may well be substantially more detrimental so the language is consistent. The prohibition on a second change, however, does seem inconsistent with the language of section 6, but it may be interpreted to mean that any change must comply with the statutory language.

Accordingly I am remanding Miscellaneous Case No. 166188 to the Board of Appeals to hold a new hearing by January 1, 1993 after first giving the statutory notice; the ZBA shall hear the evidence and file its decision with the Town Clerk within the statutory time frame.

The Land Court retains jurisdiction of this appeal.

In Miscellaneous Case No. 173655 the plaintif seeks a determination pursuant to G.L. c. 240 §14A and c. 231A §1 that as applied to him the zoning classification is unconstitutional. He relies on the decision of the Supreme Judicial Court in Barney & Carey Co. v. Milton, 324 Mass. 440 (1949) where it was said:

The power to regulate the use of property under zoning regulations is a branch of the police power. The extent of the exercise of this division of the police power and its limitations have long been settled in this Commonwealth and have been so fully discussed in recent decisions that it is not necessary to repeat what has there been said. Wilbur v. Newton, 302 Mass. 38 . Simon v. Needham, 311 Mass. 560 . Burlington v. Dunn, 318 Mass. 216 . Caires v. Building Commissioner of Hingham, 323 Mass. 589 . Where the application of the by-law to a particular parcel of land or to a specific use of the land together with the attending peculiar circumstances demonstrates that the imposition of the zoning regulation in such an instance has no real or substantial relation to the public safety, public health or public welfare but would amount to an arbitrary, unreasonable, and oppressive deprivation of the owner's interest in his private property, then that application of the regulation has been struck down.

At page 449 of Barney & Carey Co., Justice Ronan wrote:

The by-law must be reasonable to be valid. Its reasonableness is essentially connected with the power or competency of the town to adopt it and in this case to enforce it as to the petitioner's land. The reasonableness of the by-law as to its application to the locus is to be determined by the location, size and characteristics of the land, the nature and use of adjoining land and other land in the general vicinity, and all other physical aspects that are involved, rather than the conclusions of the judge which are inconsistent with the basic facts appearing in his decision.

If we apply this test to the plaintiffs' land there is nothing unreasonable in classifying it as residential as is the neighborhood in which it is located. Any hardship is alleviated by the nonconforming protection which it has consistently enjoyed. The evidence also established that the property could be converted to a residential use albeit at a financial sacrifice. So long as some use is possible the plaintiff legally has no complaint. Turnpike Realty Co. v. Dedham, 362 Mass. 221 (1972). Accordingly I will enter a declaratory judgment that as applied to him the zoning by-law is reasonable and entitled to be upheld.

The parties have submitted findings of fact and rulings of law, but having made my own I do not rule therein.

Judgment accordingly.