BENJAMIN C. OSGOOD and G. BRADLEY RICHARDS, TRUSTEES OF PARK STREET DEVELOPMENT TRUST v. TOWN OF ANDOVER.

The Town of Andover (the "Town") has by legislative fiat attempted to make a silk purse of a sow's ear under circumstances where it is impossible even in this era of medical miracles. The size of the present building and the lot on which it has sat for nearly seventy years negate any ability the plaintiffs' ancient building occupying an entire lot has to meet parking regulations designed for 1992 construction. The problem in short is whether the Town validly can apply parking regulations to a building constructed on a lot created long before zoning was adopted in Andover where the lot physically cannot provide the required spaces. The building, the lot, the use formerly made of it and that contemplated are all permitted in the zoning district. The rub comes from the number of spaces required by 1985 amendment to the zoning by-law which cannot be met by this building, whether used as in the past for a bowling alley or as desired in the Land Court case by the plaintiffs for a mini mall. I find and rule that as applied to the plaintiffs' land the by-law is arbitrary if not indeed unconstitutional. Accordingly I annul the decision of the Zoning Board of Appeals and remand Superior Court Case No. 87-2603 to the Zoning Board of Appeals with instructions that the Building Inspector's ruling be reversed and he be ordered to issue a building permit upon presentation of plans in accordance with the Massachusetts Building Code. I also would remand the matter to the Planning Board a) to consider whether use of the premises for a mini mall is substantially more detrimental to the neighborhood than a bowling alley and its ancillary uses and b) to reconsider its denial of a special permit for a reduction of the number of parking spaces under the unique circumstances presented on this case if it were not for my decision on the Land Court case and the earlier in time Superior Court Case. Upon the final resolution of these two matters motions to dispose of the Planning Board action will be in order.

The plaintiffs, Benjamin C. Osgood and G. Bradley Richards Trustees of Park Street Development Trust (the "Trustees") the owner of the premises at 32-34 Park Street in Andover in the County of Essex, and the defendants, the Town of Anodver, the Members of Andover Zoning Board of Appeals (the "ZBA") Samuel DeSalvo (the "Building Inspector") and the members of Planning Board.

In 1985 the Town of Andover amended its zoning by-law to incorporate provisions for off street parking in future developments and to alleviate persistent parking problems in the Central Business District. The requirements were sensible as to new construction but violated constitutional provisions as applied. The plaintiffs, Benjamin C. Osgood and G. Bradley Richards, Trustees of Park Street Development Trust sought administrative relief from the local authorities and in each instance appealed to the Essex County Superior Court. The Chief Administrative Justice has designated me a Superior Court Justice to hear and decide those appeals. A complaint pursuant to G. L. c. 240 §14A and c. 185 §1 (j 1/2) was brought in this department seeking a determination of the validity of the by-law provisions as applied to locus. This statutory provisions of which the Land Court has exclusive jurisdiction provides an avenue for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so-called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement of development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition.

I ruled in the course of the litigation in denying the Town of Andover's motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6) that the administrative appeals did not bar the Land Court action on the authority of Sisters of the Holy Cross v. Brookline, 347 Mass. 486 (1964) and Banguer Realty Co. v. Acting Building Commissioner of Boston, 389 Mass. 565 (1983).

The parties have submitted the three cases to the Court upon an Agreed statement of Facts and Agreed Upon List of Exhibits, and accordingly based thereon I find and rule as follows:

1. The plaintiffs, as Trustees of Park Street Development Trust, purchased the subject property, 32-34 Park Street, Andover, Massachusetts, on July 11, 1986 for a purchase price of $1,200,000.00.

2. The subject property consists of a lot of land located in downtown Andover containing approximately 26.931 square feet with frontage of approximately one hundred and eight feet (108') on Park Street.

3. Located on the subject property is a brick building approximately two hundred feet (200') in length and covering approximately 21,750 square feet of space.

4. The premises is located within the General Business Zoning District, which district is made up almost entirely of the downtown area of Andover.

5. The Andover Zoning By-Law lists at least thirteen (13) business and commercial uses which are permitted as a matter of right in a General Business District, including retail use and a commercial establishment for the assembly of people for indoor recreation and amusement and for purposes of sporting events or athletic facilities.

6. At the time of the plaintiffs' purchase of the subject premises it was used as a bowling alley with accessory retail uses for items connected with bowling and for the wholesale sale and repair of bowling machinery and equipment.

7. After purchasing the premises the plaintiffs ceased using the premises as a bowling alley, applied for and received a Demolition Permit from the Town and proceeded to gut the interior of the building; the premises have been vacant and unoccupied since 1987.

8. The building on the subject premises was erected prior to the adoption of the parking requirements in question, which were aded to the By-Law in April 1985.

9. Following the work gutting the interior of the structure, the plaintiffs, on July 21, 1987, applied for a building permit to remodel the existing structure to allow for its use for retail purposes.

10. By letter dated August 7, 1987, the Andover Building Inspector issued a written denial of the plaintiffs' application for a building permit, stating that because the plaintiffs intended to use the premises for retail purposes, no permit would be issued unless the plaintiffs complied with the then-current parking requirements of the By-Law.

11. At the time of the application for a building permit, the subject premises had room for, at most, twelve (12) on-site parking spaces.

12. On or about September 1, 1987 the plaintiffs duly filed an appeal of the Building Inspector's decision with the Andover Zoning Board of Appeals; after notice and hearing on November 6, 1987, the Board denied the plaintiffs' appeal and affirmed the Building Inspector's decision, and interpreted the By-Law to require compliance with the current parking requirements of the By-Law in order to develop the property for retail use.

13. The plaintiffs duly filed an appeal of the Zoning Board's decision in the Essex Superior Court on November 25, 1987, claiming to be a party aggrieved by the decision of the Board.

14. On March 11, 1988, the plaintiffs filed an application for a Special Permit with the Planning Board, seeking to reduce from eighty-seven (87) to twelve (12) the number of spaces required by the parking requirements of the By-Law; after notice and hearing on May 25, 1988, the Planning Board unanimously denied the plaintiffs' application for a Special Permit.

15. The plaintiffs duly filed an appeal of the Planning Board decision in the Essex Superior Court on June 14, 1988, claiming to be a party aggrieved by the decision of the Board.

16. Since the date of the denial of the plaintiffs' application for a building permit, August, 1987, the property has been vacant and is at the present time an undeveloped shell of a building, and the plaintiffs have discontinued the use as a bowling alley and for wholesale and repair of bowling machinery and equipment.

The parties agree to the admission of the following facts only as they relate to the Appeal of the Decision of the Planning Board decision denying the Application for a Special Permit to reduce the number of parking spaces:

17A. Directly across the street from the subject premises lies a Municipal Parking Lot with sixty-five (65) metered parking spaces.

18A. Diagonally across the street from the subject premises lies another Municipal Parking Lot with one hundred and fifty-one (151) parking spaces.

I further find and rule as follows:

19. The facts as to the municipal parking lots which the parties limited to the application for a Special Permit apply also to the question of the validity of the by-law as applied.

20. The handsome building on the locus is a reminder of Andover's past as a mill town. There are no minimum dimensional requirements in the CBD so the building which occupies substantially all the lot on which it sits remains a conforming structure.

21. The prior use of the locus as a bowling alley is a permitted use as is the proposed new retail use. Many prior uses of the building have been less desirable than what is proposed.

22. Whatever use is made of the premises the lot cannot comply with the 1985 parking regulations, and it is alleged that many other properties in the district are similarly affliated. If this is in fact the case, serious doubts are cast on the validity of the by-law amendment.

23. The Trustees, having purchased the parcel for $1,000,000 offered to pay to the Town of Andover the sum of $100,000 toward additional parking which the Planning Board rejected as too little. The plaintiff also attempted, as suggested by the town's unrealistic planners, to interest the abutters in a joint solution, but none of them were willing to participate. The planning department also refused to suggest acceptable alternatives to the Trustees, but merely rejected their proposals.

24. The by-law enacting the parking restrictions provides that pre-existing, nonconforming building and uses need not meet current requirements but shall continue to meet the provisions in effect prior to the 1985 enactment, but a change in use requires conformance and that is the difficulty.

25. The Planning Board is authorized to allow remote parking lots, shared parking lots or any enforceable alternatives which it deems reasonable based on certain criteria enumerated in the by-law. It apparently did not view the two municipal parking lots across the street as suitable alternatives, but in the light of the down turn in the economy it might now view the situation differently.

The Trustees question the constitutionality of the by-law as applied to their premises and short of that its validity under the rule proposed in Caires v. Building Inspector of Hingham 323 Mass. 589 (1949). The town insists that the trustees cannot raise such issues since the Attorney General was not notified of the action as required by G.L. c. 231A, §8 for matters arising thereunder. The statute does not apply to declarations pursuant to Chapter 240, §14A. Mass. R. Civ. P. 24 (d) also has a similar provision, but I have not required compliance with it since the present practice of the Attorney General is to leave the defense of municipal ordinances and by-laws to city solicitors or Town Counsel. Under these circumstances I have not required a useless act to be done.

It is clear from the language of the by-law that the continued use by the Trustees of the locus for a bowling alley was protected but that the statute was intended to apply to a change of use, albeit a use permitted as of right. It further is clear that locus cannot comply with the spaces required by the by-law without substantial destruction of the handsome building thereon or even perhaps then. Whether an underground garage could be constructed and how expensive it might be has not been explored. Section VI A 6 h does authorize the Planning Board to approve off site parking. The Trustees did offer to contribute $100,000 to the acquisition of additional spaces, but this was rejected. The Court also suggested that the building (rather than the use) is nonconforming as to viability of parking spaces and that accordingly a change in use which is not substantially more detrimental should be approved by the Board with jurisdiction over the G. L. c. 40A §6 finding. See Shrewsbury Edgemere Associates, Ltd. Partnership v. Board of Appeals of Shrewsbury, 409 Mass. 317 (1991). A remand to the Planning Board to reconsider in view of the presence of municipal parking lots is a third avenue of approach. In Quincy, for example, a mini-mall in the former Sears Roebuck store is serviced by parellel parking on the public way and the municipal services in the rear.

Before resorting to the band-aid approach, however, the concept of imposing stringent regulations on existing buildings on existing lots is fundamentally wrong. It limits the use of the locus to a narrow and undesirable category and forces the abandonment of creative use of old buildings. The Trustees seek in no way to change the footprint of the building which by its very nature cannot comply with the parking requirements. It is unrealistic and worse unconstitutuional to deprive the trustees of a permitted use because of such legislation. While different both from Wilson v. Commonwealth, Mass. (August 11, 1992) and Lucas v. South Carolina Coastal Council, 60 U.S.L. W. 4842 (June 29, 1992) it concerns another instance of governmental action with a valid purpose applied in an egregious fashion. This aspect of the case is governed by the tests spelled out in Caires and its progeny; as applied to the property of the trustees the parking regulations do not pass muster. See National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 (199).

In view of the result I have reached as to the validity of the by-law as applied, I remand Superior Court Case No. 87-2603 to the ZBA with instructions that the decision of the Building Inspector be reversed, and he be instructed to issue the Building Permit upon aproval of plans in accordance with the State Building Code.

I further find that the decision of the Planning Board not to act favorably on the Trustees' application for a reduction of parking spaces as provided in the By-Law in view of the lack of capacity of the locus to provide the spaces and the presence of the two municipal parkings lots immediately opposite is legally untenable and arbitray, capricious and whimisical. I would annul the board's decision and remand the matter to the Board for reconsideration if I had not alredady resolved the controversy with my decision in the other two cases. I also would request that the Board consider G. L. c. 40A §6 and a finding as to whether the proposed use is substantially more detrimental than the previous bowling alley. The two year provision is not a bar since

(a) the building when acquired in 1986 and today continues in existence, its exterior unaltered.

(b) the decisions of the town boards prevented the trustees from using the premises and therefore during the period of the litigation from 1987 to date the running of the two years relative to abandonment or non user of nonconforming uses was lotted.

Should any party wish to pursue the Planning Board action, appropriate motions may be made.

Judgment accordingly.