MISC 167061

June 30, 1992

Dukes, ss.



By complaint filed August 15, 1991, Plaintiffs appeal a decision of the West Tisbury Zoning Board of Appeals ("the Board"), pursuant to G.L. c. 40A, §17, granting six special permits to Defendant, Howard Ulfelder ("Ulfelder"), to alter two nonconforming structures and expand certain nonconforming uses on a certain parcel of land in West Tisbury ("Locus").

Pursuant to G.L. c. 231A, Plaintiffs seek a declaration that the Board has no authority to issue a special permit for an extension of a nonconforming use or structure where the proposed extension does not comply with the West Tisbury Zoning By-Law ("the By-Law").

Pursuant to G.L. c. 240, §14A, Plaintiffs seek a declaration that Section 4.123 of the By-Law (sections of the By-Law will, hereinafter, be referred to by section number only) is invalid for failure to comply with G.L. c. 40A, §9.

This case was tried on October 25, 1991 in Edgartown, at which time no stenographer was present and the trial proceedings were recorded on tape, which recordings are in possession of the parties. Inasmuch as there were no assurances as to the accuracy of the recording device, the recordings are not an official record of the proceedings. Eight witnesses testified and sixteen exhibits were marked, of which only exhibits number 1-4, 9, 10 and 14 were admitted into evidence, in addition a chalk was furnished to assist the Court. After trial, the Court viewed Locus and the general surrounding area. The admitted exhibits and the chalk are incorporated herein by reference for the purpose of any appeal. The parties submitted Post-Trial Memoranda and on January 8, 1992, the Court heard oral arguments in this matter.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Ulfelder is the owner of Locus, which consists of approximately 1.1 acres of land on State Road in West Tisbury and which is shown on the West Tisbury Assessor's Map as Lot No. 58. (Exhibit No. 2) There are two structures on Locus, a general store known as Alley's General Store ("Alley's") and Back Alley's, a take-out food store.

2. Plaintiffs, Paul Garcia and Robert Gothard own land abutting Locus.

3. Locus is located in an Agricultural-Residential ("A-R") Zoning District. [Note 1]

4. In the general area of Alley's is the Town Hall, the police station, the library, the Town senior center, an art gallery, two real estate offices, an auto repair garage, an architect's studio, a semi-public hall, a church and a sign business.

5. Alley's has traditionaly been a meeting place. At one time, it housed the West Tisbury Post Office. The removal of the Post Office in 1991 and the recent establishment of a commercial area in the northern part of the Town has caused the business of Alley's to drop off, the store is apparently operating currently at a loss.

6. Alley's has existed in its present location since approximately 1858. It is advertised as "dealers in almost everything." As a general store, Alleys sells grocery items, hardware, newspapers, post cards, small items of interest to tourists and occasionally a painting. At one time, Alley's contained a real estate office; such use was discontinued in 1984.

Back Alley's was built in the late 1950's and early 1960's, and presently sells fresh food, including cakes, sandwiches, and drinks for take-out only. In the past, Back Alley's has served as a car wash and a laundromat, both of which uses ceased in the mid to late 1980's.

The present uses of Alley's and of Back Alley's are nonconforming as, under Section 3.000 and 3.110, commercial or retail uses are not permitted in the Agricultural-Residential District.

7. The dimensional requirements of Section 4.110 establish a three-acre minimum area with minimum fifty foot front and sideyard set-backs in that District.

Alley's is structurally nonconforming in that it is entirely within the front yard and northerly sideyard set-backs established by Section 4.110. Back Alley's is nonconforming in that is has an inadequate sideyard set-back and both buildings are, as stated, on an undersized lot. Both buildings are in need of some repair.

8. On April 22, 1991, Ulfelder filed an application with the Board, seeking three variances and four special permits to alter and expand the nonconforming structures and uses on Locus.

9. A public hearing on the Application was held on June 5, 1991, which hearing drew enormous community response. Following a second public hearing on June 17, 1991, a community mediation group ("the Community Mediation Group") was formed in an erfort to ensure that the changes to Alley's and Back Alleys would be acceptable to the community, approximately fifteen people, including one of the Plaintiffs, participated in four mediation sessions. On July 17, 1991, the resulting recommendations of the Community Mediation Group were submitted to the Board.

10. By amended application ("the Application") filed June 28, 1991, Ulfelder made the following requests for special permits ("the Special Permits"):

1) Under Section 4.123 . . . to construct an addition to Alley's General Store that would be located closer to the easterly lot line than permitted by applicable setback requirements as to the second floor but no closer than the eastern-most wall of the existing building . . .

2) Under Section 7.130 . . . to expand a . . . non-conforming commercial use . . . in order to create a larger space at Alley's General Store in which to conduct commercial activity which is related and complementary to existing uses and activities . . .

3) Under section 7.130 . . . to construct an addition to Alley's General Store on a . . . non-conforming lot . . .

4) Under Section 7.130 . . . to expand a . . . non-conforming structure . . . in order to create additional space at Back Alley's to house new refrigeration equipment and to construct a porch to Back Alley's . . .

5) Under Section 7.130 . . . to expand a . . . nonconforming use to create larger space at Back Alley's in which to conduct commercial activity which is related and complementary to existing uses and activities . . . ; and

6) Under Section 4.123 . . . to expand a structure . . . in order to construct a porch addition to the front of Back Alley's which would not meet the present minimum setback requirements . . .

11. Ulfelder proposes to renovate Alleys by adding a second floor and constructing a 2,440 square foot addition, of which he proposes to use 1300 square feet for office services; 500 square feet for contract postal services, and 640 square feet as an art gallery. The proposed uses of Alley's as an art gallery and for office space are not allowed in the Agricultural-Residential District, under Section 3.000 and 3.110, nor are they allowed there by special permit under Sections 3.130 and 3.140. Such uses appear to be allowed in the Limited Resale/Wholesale Business District under section 3.210.

He further proposes to renovate Back Alley's by constructing a covered porch in the front and an area for expanded refrigeration in the rear. He also proposes to create a twenty-two car parking lot to be laid out in a more "formal" manner than at present. There is noproposed change in use of Back Alley's.

12. The proposed addition to Alley's, in its entirety, fails to meet the minimum set-back requirements of Section 4.110. The proposed addition to Back Alley's will extend approximately 25 feet into the 50 foot sideyard setback established by Section 4.110, and both additions ("the Proposed Additions") of course will be on the undersized lot. The Proposed Additions are shown on a plan entitled "Site Plan" dated March 21, 1991, and introduced as Chalk A to assist the Court.

13. By decision filed with the West Tisbury Town Clerk on July 30, 1991 ("the Decision"), the Board granted all six of Ulfelder's applications for special permits. The Board found that the granting of such permits "would not be more detrimental to the neighborhood".

In special permit appeals brought pursuant to G.L. c.40A, §17, the reviewing court hears the matter de novo, makes its own findings of fact and, on the facts so found, affirms the decision of the permit granting authority unless it is determined to be based on some legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979). Insofar as the court's review is limited to the legal validity of the permit granting authority's action in granting or denying the special permit, Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983), it may not substitute its judgment for that of the permit granting authority. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969).

Section 4.123

Section 4.123 provides, in pertinent part:

In accordance with Section 8.220, the Board of Appeals may . . . grant a special permit to build at a location having less than the minimum setback or frontage distances specified above in Section 4.110 if . . . such use will not have a material detrimental effect upon the established and future character of the neighborhood and the Town; and if . . . it has been demonstrated that denial of the application would impose hardship upon the applicant (Section 8.220 sets forth the powers of the Board, including its power to hear and decide special permit cases).

Neither Alley's nor Back Alley's presently meet the minimum set-back requirements, and accordingly the proposed addition to the north side of Alley's and on the south side of Back Alley's would be constructed on less than minimum set-back.

The appropriateness of special permits to authorize construction in instances such as this has been discussed at length in Edmond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 360 (1989), wherein a similar by-law was held not to violate the uniformity requirement of G.L. c. 40A, §4 nor conflict with the provision of §9. Accordingly, I find Section 4.123 to be in compliance with the pertinent case law and statutes. Moreover, inasmuch as Section 4.123 expressly empowers the Board to grant special permits in such instances, the law of Rockwood v. Snow Inn Corp, 409 Mass. 361 (1991), has no application hereto.

While it is not clear from the Board's decision whether or not it considered the affect of such construction on the future of the neighborhood and Town or whether or not denial of the application would impose a hardship upon the applicant, I find that considering the character of the Town, particularly the neighborhood, and the testimony of the witnesses, including Defendant, Ulfelder amply demonstrated that the future of the neighborhood and Town would not be adversely affected by the grant of the Special Permits, while the denial thereof would have severe adverse economic repercussions for Mr. Ulfelder, most likely on Locus, and quite probably on the neighborhood.

Proposed Uses

Section 7.130 of the By-Law provides:

The Board of Appeals may grant a special permit to allow a non-conforming structure or use to be changed, extended or altered provided that such change, extension or alteration is not, in the opinion of the Board of Appeals, substantially more detrimental to the neighborhood than the existing [structure] or use.

G.L. c. 40A, §6 provides, in pertinent part:

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

The Appeals Court has interpreted the forgoing language of §6 as establishing the authority of a municipality through its zoning by-law to regulate or forbid changes in nonconforming uses, and recognizes that changes may be allowed wherever expressly permitted by zoning by-law, as in this instance. Blasco v. Board of Appeals of Winchester, 31 Mass. App. Ct. 32 , 37-9 (1991); Shrewsbury Edgemere Associates Ltd. Partnership v. Board of Appeal of Shrewsbury, 409 Mass. 317 (1991).

Moreover, the "change of use" language of §6 is meaningless unless interpreted as an authorization of municipalities to adopt by-laws authorizing a change from a pre-existing non-conforming use to a use not permitted, at least in the pertinent zoning district. Obviously a change to a permitted use would in most instances be permitted of right, while a by-law permitting a use by special permit provides for the permitting mechanism.

Accordingly, I find that the Board did not exceed its authority in granting the Special Permits under Section 4.123 and Section 7.130.

Defendant, Ulfelder has in his brief, raised the question of Plaintiffs' standing to bring this appeal. Such question may well exist, but I cannot find that it was seasonably raised at trial, moreover, in view of the foregoing such issued would appear to be moot.

For all of the foregoing reasons, the July 25, 1991, decision of the West Tisbury Board of Appeals is hereby affirmed.

Judgment accordingly,


[Note 1] There appears to be some confusion as to whether Locus is in an A-R 1A Zoning District or and A-R 1B Zoning District. Forpurposes of this case, there are no relevant distinctions between the two districts.