Plaintiffs Guastavino Realty, LLC ("Guastavino") and John Tocci, President of Guastavino Realty, LLC ("Tocci") (together, "Plaintiffs") filed their unverified Complaint on February 10, 2011, pursuant to the provisions of G.L. c. 40A, § 17, appealing a decision (the "2011 Decision") of Defendant City of Woburn Zoning Board of Appeals (the "ZBA") which upheld a Cease and Desist Order (the "Cease and Desist Order") of Defendant Building Commissioner Steve Paris (the "Building Commissioner") (together with the ZBA, "Defendants") relative to property located at 660 Main Street, Woburn, MA ("Locus"). A case management conference was held on March 23, 2011. A pre-trial conference was held on January 3, 2012. A site view and the trial at the Middlesex Superior Court in Woburn were held on Thursday, February 28, 2012. Post-trial briefs were filed on April 25, 2012 and April 26, 2012, respectively. The matter was then taken under advisement.
Testimony at trial was given by Plaintiffs' witnesses John Carbone (prior owner of Locus), Tocci (Plaintiff), Paul Meaney (prior member of Woburn City Council), and Leonard Harmon (neighbor). Testimony was given by Defendants' witnesses Irene Kerr (owner of abutting property) and Victor Allen (owner of abutting property). Sixteen exhibits were submitted into evidence.
Based on the sworn pleadings, the evidence submitted a trial, and the reasonable inferences drawn therefore, I find the following material facts:
1. Locus is comprised of 4.1766 acres, a portion of which is registered land and a portion of which is unregistered land. A majority of Locus, including the portion adjacent to Main Street and the portion containing the building, is located in the S-1 zoning district under the Woburn Zoning Ordinance (the "Ordinance"). [Note 1] A small portion of Locus, including the portion adjacent to Lowell Street, is located in the R-2 zoning district. [Note 2]
2. John Carbone ("Carbone") and/or related entities owned Locus from 1970 until 1999. [Note 3] During that time he leased the building on Locus to a number of tenants, including Martin Television & Appliances, Inc. ("Martin Television") and Arthur Ganson ("Ganson"). Locus was used by these tenants for mixed commercial uses.
3. By deed dated December 31, 1999, and recorded with the Middlesex South District Registry of Deeds at Book 30128, Page 298, Carbone deeded Locus to Guastavino. [Note 4] The building on Locus was renovated, having formerly been the site of the R. Guastavino Ceramic Tile factory, an organization with extensive history in Woburn. The front entrance to the building faces Lowell Street.
4. There are two driveways on Locus, one from Main Street (the "Main Street ROW") and one from Lowell Street (the "Lowell Street ROW"). [Note 5] The Main Street ROW is located in the S-1 zoning district, and the Lowell Street ROW is located in the R-2 zoning district. A plan of a portion of Locus titled "Plan of Land in Woburn, Mass. Surveyed for R. Guastavino Company" dated April 14, 1928, and prepared by Edgar F. Erlander, C.E., shows access to the property from Lowell Street.
5. A chain crossed the Lowell Street ROW from the mid-1960s until its removal in 1993 or 1994. The chain was installed to visually deter vandals and could be readily removed, posing no meaningful impediment to access.
6. In 1985, the Ordinance was amended to add Section 5.2.4 ("Section 5.2.4"), as follows: "[n]o access through any lot in a residential district to any land in a non-residential district shall be permitted unless no alternate access is available..."
7. One lot of residential property located at 16 Lowell Street and abutting Locus (the Lowell Street ROW in particular) is owned by Rita and Victor Allen, Irene Kerr, and Joan Kerr McWilliams.
8. Neither Irene Kerr nor Victor Allen witnessed the Lowell Street ROW being used prior to 1994.
9. On July 14, 1999, Ganson authored a letter to Tocci confirming that he "irregularly" used the Lowell Street ROW as access while a tenant at Locus. [Note 6]
10. On July 15, 1999, Carbone authored a letter to the Building Commissioner in which he indicated that the Lowell Street ROW "has been in continuous use throughout the history of [Locus]." Carbone also noted that the Lowell Street ROW was regularly used for ingress and egress, that he plowed it during the winter, and that a new sewer was installed under the Lowell Street ROW in 1987. [Note 7] 11. At some point prior to July 22, 1999, Charles Natale, an employee of Martin Television, authored a letter to an unknown recipient in which he indicated that he "used the exit way from...660 Main Street to Lowell Street (the Lowell Street ROW) for vehicular access on a regular basis..." [Note 8]
12. On August 20, 1999, the Tocci Building Corporation ("Tocci Corporation") sent a letter to the Building Commissioner that referenced a meeting between Tocci and the Building Commissioner a week prior. The letter noted that, "[w]ith respect to the Lowell street [sic] access [the Lowell Street ROW], we have agreed to delete the indicated access drive. A site plan will be submitted on Monday, August 23rd, 1999." [Note 9] The letter was signed by Tocci, the C.E.O. of the Tocci Corporation.
13. On August 25, 1999, Attorney Joseph R. Tarby, III ("Tarby"), representing Plaintiffs, stated in a letter to the City Council President that, "it is our opinion that Guastavino has the right to utilize [the Lowell Street ROW] and said right is grandfathered notwithstanding the language set forth in Section 5.2.4..." Tarby then explained that he did not believe that Section 5.2.4 was applicable to Locus.
14. On October 21, 1999, Plaintiffs appealed the final of several building permit rejections by the Building Commissioner to the ZBA. In its November 18, 1999 Decision (the "1999 Decision"), the ZBA noted amongst its several findings of fact that:
15. On August 20, 1999, revised plans were submitted deleting the access drive to Lowell Street . . .
17. On September 17, 1999 revised plans were resubmitted to the Building Commissioner showing no access to Lowell Street and removing the dormers. [Note 10]
The ZBA granted Plaintiffs' request for relief, reversing the Building Commissioner's denial of the Building Permit Application and instructing the Building Commissioner to issue, "all necessary building permits, occupancy and such other permits and certificates that may be required by the Petitioner in this instance and in further instances to complete the renovations outlined in the Petitioner's Building Permit Application."
15. By letter dated November 29, 2000, Tocci was warned by the Building Commissioner of potential violations of the Ordinance, including:
3) It has been reported that you are gaining access to your property by means of a strip of land abutting Lowell St. If this is in fact what is happening, you are in violation of WZO [Note 11] section 5.2-4 for accessing non-residential land through a residential district.
16. Tocci responded to the Building Commissioner in a letter dated December 8, 2000, stating with regard to the Lowell Street ROW, that:
with respect to comment No. 3 relative to access of our property by means a strip of land abutting 16 Lowell Street, you have indicated that it has been reported to you that we are in fact using said access...[w]hoever has reported to you that we are accessing our property from Lowell Street has provided you with misinformation. As we have said in the past...without waiving our rights to use same, we will not utilize said access unless the appropriate special permit granting authority grants a special permit to allow such access.
17. By letter dated March 12, 2001, Tocci responded to a communication from the Building Commissioner. [Note 12] In reference to Section 5.2.4, Tocci indicated that:
[i]t is clear that Section 5.2.4 was intended to address vehicular access to business zoned property through a residential district. As I indicated to you in my correspondence dated January 23, 2001, we have installed a stone dust path that will be used for a pedestrian walkway similar to paths that are located on others business properties...in the City of Woburn. We would only be in violation of the WZO if we utilized the stone dust path for vehicular ingress and egress to and from our property.
Tocci further noted:
[a]s I have requested before, if you have any evidence that we have utilized the area within the stone dust path for vehicular access, please provide me with said evidence. The stone dust path is clearly not a vehicular right-of-way and is not in violation of the WZO.
18. From October of 2002 to 2010, Leonard Harmon, a neighbor residing at 11 Lowell Street (diagonally across the street from the exit of the Lowell Street ROW), witnessed the Lowell Street ROW being used several times a week for egress from (but not ingress to) Locus.
19. On October 18, 2010, the Building Commissioner issued the Cease and Desist Order to Guastavino advising him that using the Lowell Street ROW was a violation of the Ordinance. The Cease and Desist Order stated,
You are hereby ordered to immediately cease and desist all use of that portion of [Locus] which is located in the R-2 zoning district as access to [Locus]. Further, you are ordered to secure that portion of [Locus] with a fence or some other structure which would prohibit access to [Locus] from Lowell Street within ten days of your receipt of this order.
20. On October 19, 2010, Plaintiffs appealed the Cease and Desist Order to the ZBA. Public hearings were held on November 17, 2010 and December 15, 2010, after which the ZBA voted to uphold the Cease and Desist Order. The ZBA noted that its decision was based in part on its determination that, "even if there had been a pre-existing non-conforming vote [sic], the applicant had abandoned or not used the use." On January 14, 2011, the ZBA approved Board Member Margaret Pinkham's motion to reconsider her vote. After reconsideration, the ZBA did not find sufficient evidence to overturn the Cease and Desist Order.
As a preliminary matter, I address the admittance of certain recently-located documents produced by Defendants at trial. Plaintiffs initially objected, as no such documents had been discussed during the pre-trial conference or in the joint pre-trial memorandum. Indeed, this court noted concern regarding the timing of their entry on the record. Nevertheless, the court took them into consideration de bene as Exhs. 11, 12, 14, 15, and 16. [Note 13]
Evidence admitted de bene is allowed conditionally in the present in anticipation of a need in the future. See Mass. G. Evidence §611(a) (2012); Ellis v. Thayer, 183 Mass. 309 , 310-311 (1903); Black's Law Dictionary 330 (7th ed. 2000). The trial judge has discretion to determine the relevance of the evidence, and weigh such relevance against any prejudicial effect. Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480 , 485 (2004). De bene evidence is subject to a later motion to strike, although it is not the duty of the judge to make the motion. See Muldoon v. West End Chevrolet, Inc., 338 Mass. 91 , 98 (1958).
I find that the letters between Tocci and the Building Commissioner (Exhs. 11, 14, 15, and 16) are relevant, as they shed light on Tocci's intentions regarding the Lowell Street ROW and bring clarity to the timeline of its use. Similarly, I find that the 1999 Decision of the ZBA (Exh. 12) is relevant, as it reveals information regarding plans that show removal of the Lowell Street ROW. These documents were not located by Defendants until recently, and all were public record. Furthermore, Plaintiffs were intimately involved in all five of them, and were or should have been aware of their existence and content at the time of trial. I therefore find that there is no prejudicial effect in admitting Exhs. 11, 12, 14, 15, and 16 to the record, and they are so admitted. [Note 14]
At the outset of litigation, the primary question was the applicability of Section 5.2.4 to the Lowell Street ROW. However, both parties now agree that use of the Lowell Street ROW is a pre-existing nonconforming use and was therefore permitted, at least initially. The central issue in this case that remains is whether use of the Lowell Street ROW has been abandoned or discontinued as a pre-existing nonconforming use for a period of one year. Plaintiffs assert that the Lowell Street ROW was never abandoned and that its use, if ever discontinued, was not discontinued for a one year period. [Note 15] Defendants argue that the Lowell Street ROW was abandoned or that its use was discontinued for a one year period, and that under the Ordinance, either situation would bar that use from being reinstated.
On appeal, the court reviews a board of appeals' findings of fact de novo. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). After the reviewing court makes its own findings of fact, the zoning board's decision must be upheld unless the court determines that the decision was "based on a legally untenable ground, or is unreasonable, whimsical, capricious, or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). Although deference is given to the board's decision, id., it must base its decision on "a rational view of the facts." See id. [Note 16] I shall review each of the issues (nonuse and abandonment) in turn.
Use of the Lowell Street ROW:
Before Section 5.2.4 made such use nonconforming in 1985, use of the Lowell Street ROW to access Locus was by-right and therefore could not be abandoned. Consequently, the relevant period to the issue of abandonment is from 1985 to the present.
Testimony at trial revealed a general history of sporadic use of the Lowell Street ROW throughout this time period. Carbone, owner of Locus in one manner or another from 1970 to 1999 testified at trial that he drove vehicles into and out of Locus via the Lowell Street ROW, "constantly," although the Lowell Street ROW was the secondary means of access: [Note 17]
Q: Did you drive vehicles into or out of the property via [the Lowell Street ROW]?
A: Oh, yeah. Constantly . . . [T]hat was our second means of egress. So, most of the time I would come in from Main Street, but I would constantly be using [the Lowell Street ROW].
(Trial Transcript 19-20) [hereinafter "TT"].
In 1985 Carbone purchased property in Gloucester, and although permitting took three or four years, development of the Gloucester property continued through 1991 or 1992. During this period Carbone spent a significant amount of time in Gloucester, although he testified he remained a resident of Woburn. Although Carbone testified as to his constant (yet secondary) use of the Lowell Street ROW, the only specific instance of use of the Lowell Street ROW during his ownership that he testified to occurred in 1998, during negotiations for the sale of Locus to Tocci (which Tocci also testified to).
In addition to Carbone's use of the Lowell Street ROW prior to its sale in 1999, several tenants of Locus stated that they utilized the Lowell Street ROW in their business endeavors. In 1999, Charles Natale, an employee of Martin Television wrote that his company utilized the Lowell Street ROW, "for vehicular access on a regular basis." Martin Television was a tenant of Locus for approximately ten years and appears to have used the Lowell Street ROW as its primary means of access because it rented the front of the building, directly across from the Lowell Street ROW. The dates of Martin Television's tenancy, however, are not in the record, and little can be inferred save that such dates fell between 1970 and 1999. Ganson, another former tenant, wrote to Tocci on July 14, 1999 to confirm that he utilized the Lowell Street ROW, "irregularly," while operating out of Locus. The years of Ganson's tenancy are similarly undefined.
Against Carbone's testimony stands that of Irene Kerr ("Kerr") and Victor Allen ("Allen"). Kerr, who has resided at 16 Lowell Street since 1949, testified that she had not witnessed anyone using the Lowell Street ROW between the mid-1960s and mid-1990s. Furthermore, she testified that until 1993 or 1994 the Lowell Street ROW was neither fully plowed during the winter nor mowed clear during warmer months. She admitted on cross-examination, however, that she was out of the house for work from 7AM to 5PM most days. Allen has resided at 16 Lowell Street since 1997, but visited regularly since 1986, and testified that the he never witnessed the Lowell Street ROW used to access Locus until late in the summer of 1998.
Upon Plaintiffs' purchase of Locus in 1999, the property went through extensive construction, revision, and modification. Tocci testified that, from 1999 until the Cease and Desist Order was issued by the Building Commissioner on October 18, 2010, the Lowell Street ROW continued to be used sporadically. He asserted that he used the Lowell Street ROW several times each week, though he conceded that there were periods of "many months" (but less than a year) (TT 143), in which he would stop using it, given that it was "the sensitive time when objections were being raised to keep [Plaintiffs] from getting [the] certificate of occupancy." Nevertheless, Tocci testified that even during those periods in which he himself was not using the Lowell Street ROW, his employees were using it. Tocci further testified that such use continued during those periods during which he had previously indicated to the Building Commissioner and ZBA that he would not utilize the Lowell Street ROW, as well as after having received the Cease and Desist Order. [Note 18] A neighbor, Harmon, who resides across the street from the exit of the Lowell Street ROW, confirmed that from 2002 onward he witnessed regular egress from the ROW several times a week.
Lawful nonconforming uses in Woburn are to be "strictly regulated," such that provisions of the Ordinance should be, "interpreted in the light most favorable to limiting the continuation of nonconforming uses and structures." Ordinance § 7.2 (2012). Defendants contend that the Lowell Street ROW laid unused for at least one year, thereby extinguishing the prior nonconforming usage rights per the Ordinance, which reads in pertinent part: "No nonconforming use or structure shall be reinstated once it is abandoned or once it is not used for a period of one (1) year." Ordinance § 7.4 (2012). I find, however, that the one year period specified in the Ordinance is insufficient in light of the two year minimum mandated by the third paragraph of G.L. c. 40A § 6: "A zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more."
The Zoning Act here provides municipalities with the option to codify the extinguishment of nonconforming uses; municipalities may choose to do so or not do so. Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 667-669 (1987). However, if they do, the pertinent ordinances or bylaws must be within the bounds prescribed: the city "cannot adopt a new or amended zoning ordinance or by-law which conflicts with pertinent enabling legislation of general application." Id. at 670. Here the Ordinance's one year period plainly conflicts with the statutorily required minimum of two years or more. [Note 19]
The evidence in the record and the testimony at trial amount to a great deal of generalized information about the use of the Lowell Street ROW but only one specific recollection of use (occurring during negotiations for the purchase of the property by Tocci from Carbone in late 1998). Carbone's testimony alleged that he was there "constantly" (TT 19), "if not seven days a week, five days a week" (TT 18), but later stated "it might be three times a week, it might be five times a month" (TT 19-20). He testified to no specific incidences of use apart from his site visit with Tocci. Furthermore, his testimony regarding his time during his development of the property in Gloucester (1985 until 1991 or 1992) is even more vague: "I'd access [the ROW] at any time I wanted to, any time, and that could have been a time I was doing that." TT 55 (emphasis added).
The letters of Carbone's tenants are similarly inconclusive. Martin Television was alleged to have used the Lowell Street ROW as their primary means of ingress and egress for at least a decade, but the record does not reveal which decade: their use could have wholly ceased prior to 1985. Arthur Ganson, the other tenant, supposedly used the Lowell Street ROW even less than Martin Television, and the dates of his irregular use are likewise unknown. Neither owner's testimony has been further corroborated by the tenants or employees they claim used the Lowell Street ROW.
Tocci's testimony shares the vagueness of Carbone's account. He stated he used the Lowell Street ROW "irregularly" at the outset of his ownership in 1998 (TT 97), and even represented to the city that he was not using it at all. [Note 20] He states definitively that he has "never seen a tenant use [the Lowell Street ROW]," (TT 144), but he "would say" that his employees have used the Lowell Street ROW in spite of not being authorized to do so. Tocci's testimony is in accord with Carbone's regarding their use of the Lowell Street ROW during negotiations in 1998 or 1999, and the neighbor Harmon's testimony establishes use from October 2002 onward. However, no specific instances of use during the period between appear in the record. Being generous to Plaintiffs, this period runs from January 2000 to October 2002, nearly three years.
There is nothing in Carbone's testimony, Plaintiffs' testimony, or the undated letters of Carbone's tenants that demonstrates that it is more likely than not that the Lowell Street ROW was being used at least once every two years for the entire period from 1985 until 2010. There are serious gaps during periods of Carbone's ownership (especially while he was working in Gloucester), and while the testimony of nonuse by Kerr and Allen is not wholly complete and convincing, Plaintiffs bear the burdens of proof and persuasion in this case. [Note 21] There is a similar gap between 1999 and 2002 during Tocci's ownership. In fact, not only is there no affirmative evidence of use during this period, but Tocci's letters provide affirmative evidence of nonuse, stating in December of 2000 that reports of use of the Lowell Street ROW were "misinformation," and representing in March of 2001 that the Lowell Street ROW was not being used for vehicular purposes. Consequently, I find that Plaintiffs have not met the burden of showing that their use of the Lowell Street ROW did not cease for a two year period since 1985. [Note 22]
Abandonment of the Lowell Street ROW:
Even if the lawful nonconforming use was not extinguished by nonuse, the Ordinance provides a second avenue to the same result: abandonment. See Ordinance § 7.4. [Note 23] Abandonment is defined in the Ordinance as, "the visible or otherwise apparent intention of an owner to discontinue a non-conforming use of a building or premises..." Ordinance § 2.
Abandonment may occur "momentarily, without the lapse of any stated period of time" such that a clear, overt act may, in and of itself, signal one's abandonment of a nonconforming use. Town of Orange v. Shay, 68 Mass. App. Ct. 358 , 363-64 (2007) (quoting Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 668-69); e.g., Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962 (1984) (holding that surrender of a permit to operate a nursing home was unequivocal evidence of intent to abandon such nonconforming use). However, such actions cannot be involuntary, and the abandonment indicated cannot be conditional or temporary. See Derby Refining Co. v. Chelsea, 407 Mass. 703 , 709-711 (1990) (finding no intent to abandon in three-month cessation of activities and statutorily-mandated letter to Coast Guard notifying of cessation). In identifying an owner's intent to abandon, a fact finder must review the actions of the party in question, such that "evidence of things done or not done which carries the implication of abandonment will support a finding of intent, whatever the avowed state of mind of the owner..." Dobbs v. Board of Appeals, 339 Mass. 684 , 686-87 (1959) (citing Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560 (1954)).
In his August 20, 1999 letter to the Building Commissioner, a public record, Tocci proclaimed unequivocally that, "with respect to the Lowell street [sic] access, we have agreed to delete the indicated access drive." Tocci's decision to remove the Lowell Street ROW was confirmed by his subsequent submission, referenced in the August 20th letter, of a site plan that, according to the ZBA, "delet[ed] the access drive to Lowell Street." This plan was also identified in the 1999 Decision, and in the resubmission of revised plans on September 17, 1999, within which access to the Lowell Street ROW was also absent.
Much was made at trial of the alleged conversations between Tocci and the Building Commissioner, from which Tocci asserts that he merely agreed to "temporarily" remove the Lowell Street ROW in order to receive "the otherwise undeniably due building permit simply because of the argument that is before the court this day." He then went on to testify that he, "removed [the Lowell Street ROW] in order to get the building permit to complete the construction, so that the building wouldn't be further damaged by being exposed to the elements," it having been, "filleted like a fish" from the demolition that was requisitioned prior to receiving the building permits. It is Plaintiffs' position that any purported intent to abandon the Lowell Street ROW surmised from the letters to the Building Commissioner is wholly inconsistent with the circumstances Plaintiffs faced - such that despite the letters, there was never any genuine intent to abandon the Lowell Street ROW but rather simply an intent to acquire the necessary permits by temporarily removing the Lowell Street ROW.
Plaintiffs point to the subsequent letters authored by Tocci in support of the proposition that they never intended to abandon use of the Lowell Street ROW. In one such letter, dated December 8, 2000, after rebuking the Building Commissioner's warning regarding Plaintiffs' purported use of the Lowell Street ROW, Tocci remarked, "[a]s we have said in the past to both Mr. and Mrs. Allen's former attorney [Note 24]...without waiving our rights to use same, we will not utilize said access unless the appropriate special permit granting authority grants a special permit to allow such access." [Note 25]
In addition to Tocci's subsequent letters, Plaintiffs argue that use of the Lowell Street ROW never ceased for a period of more than a "few" months, and that any intent to abandon the nonconforming use is therefore inconsistent with Plaintiffs' actions. Plaintiffs would have us hold then, that Tocci's subsequent letters seeking to maintain the opportunity to utilize the Lowell Street ROW, in addition to the continued use of the Lowell Street ROW, demonstrate that Plaintiffs never had the intention to discontinue its nonconforming use.
Although Plaintiffs liken the case at bar to Derby Refining Co. v. Chelsea, 407 Mass. 703 , 709-711 (1990), it is clearly distinguishable. In Derby, Derby's predecessor shut down its facility in preparation for sale, and was required by federal law to notify the Coast Guard of the shutdown. The court found no intent and thus no abandonment: the "mothballing" of the facility was temporary, and the sending of the letter was involuntary. In contrast, in the instant case, nothing in Plaintiffs' correspondence indicates that the cessation of use of the Lowell Street ROW was intended to be temporary. Additionally, while Plaintiffs may have greatly desired the building permit and been frustrated by the permitting process, their letter agreeing to "delete" the Lowell Street ROW falls far short of being involuntary. Failure to remove the Lowell Street ROW may have lost them the permit, but it would certainly not have been a violation of a federal statute.
Instead, Plaintiffs' representations are more like those of the nursing home owner in Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962 (1984). Two years after closing the home, Dawson sought a special permit to reopen, but the court held that surrender of his operating license to the Town of Bourne showed "intent to abandon and . . . voluntary conduct carrying that implication." Dawson, 18 Mass App Ct. at 963 (quoting Dobbs, 339 Mass. at 684). The court brushed aside all other facts - the subsequent use of the building to store records, the time period involved, the similarity of the proposed new use - because the single bright-line action of surrendering the license was a clear enough indication of Dawson's intent to abandon. See id. [Note 26]
To the world, Plaintiffs - like the plaintiff in Dawson - held themselves out as having abandoned their nonconforming use of the Lowell Street ROW. The text of Tocci's several letters to the Building Commissioner was decidedly clear and unambiguous. Tocci included no reservations in his August 20, 1999 letter when he wrote that, "with respect to the Lowell street [sic] access, we have agreed to delete the indicated access drive." Whether or not Tocci genuinely intended to permanently remove the Lowell Street ROW is not dispositive here. Plaintiffs placed, in a document of public record, text that clearly demonstrated their "apparent intention...to discontinue a non-conforming use." Ordinance § 2. This court struggles to conceive of a clearer manner by which one might signal their intention to abandon such a use, than by "agree[ing] to delete" the nonconforming use in a writing to a Building Commissioner, and by submitting site plans evidencing that intention. [Note 27] Such an act falls squarely within the requirements set forth by the Ordinance and necessitates the holding here. The later assurances that Plaintiffs would seek a special permit before using the Lowell Street ROW for access carry the implication that they knew that such use was prohibited. Plaintiffs cannot have it both ways, abandoning use when it is politically expedient, but using the Lowell Street ROW when it otherwise benefits them. Plaintiffs are bound by their actions, and on August 20, 1999, Plaintiffs undeniably expressed an apparent intention to discontinue their non-conforming use.
I find that Plaintiffs' representations to both the Building Commissioner and the ZBA that the Lowell Street ROW would be "deleted" was sufficient to indicate Plaintiffs' intention to abandon use of that ROW. I find the ZBA could have upheld the Cease and Desist Order on grounds of abandonment or nonuse - either or both - without being arbitrary, capricious, unreasonable, or beyond the scope of their authority. Plaintiffs' appeal of the 2011 Decision is DENIED.
Judgment to enter accordingly.
[Note 1] The Ordinance describes the S-1 zoning district as a "Mixed Use" district. Ordinance § 4.2.
[Note 2] The R-2 zoning district is identified as being, "Single Two Family Residential" [sic] in the Ordinance. Ordinance § 4.2.
[Note 3] There are no deeds in the trial record but Carbone testified to this fact and it was not disputed.
[Note 4] This deed is not in the trial record, but it is not disputed. The Tocci Building Corporation may have also been a grantee.
[Note 5] Despite their being defined as "Rights of Way" in this decision, the Main Street ROW and Lowell Street ROW are both located on land owned by Plaintiffs.
[Note 6] The dates during which Ganson was a tenant are unclear.
[Note 7] The motivation for writing the letter is not clear, but it appears to be in response to an abutter raising an objection to use of the Lowell Street ROW.
[Note 8] The letter from Martin Television was not dated. The exact dates that Martin Television was a tenant of Locus are unclear, although testimony at trial indicated that it operated at Locus for a period of ten to twelve years during Carbone's ownership.
[Note 9] It is unclear if these plans were ever submitted, although the ZBA decision of October 21, 1999 mentions plans submitted on the same date as the letter (August 20, 1999).
[Note 10] The plans submitted on September 17, 1999 were the final plans submitted before the appeal leading to the 1999 Decision.
[Note 11] Several letters refer to the Ordinance as "WZO."
[Note 12] The letter sent from the Building Commissioner was dated February 21, 2001. This letter is not in the record, but appears to have urged Tocci to review the Ordinance, particularly Section 5.2.4.
[Note 13] Exhibits 11, 15, and 16 are all letters from Tocci to the Building Commissioner, dated August 20, 1999, December 8, 2000, and March 12, 2001, respectively. Exhibit 12 is the November 18, 1999 decision of the ZBA ordering the granting of Tocci's initial building permit. Exhibit 14 is a November 29, 2000 letter from the Building Commissioner to Tocci regarding violations.
[Note 14] Additionally, no written motion to strike was entered by Plaintiffs; indeed, they indicated that they believe some of the content of the letters supports their arguments.
[Note 15] Although the parties argue a one year time frame, this court finds that a two year time frame is required. See discussion at p.12, infra.
[Note 16] See also Silva v. Conner, 17 LCR 427 , 428 (Mass. Land Ct. 2009) ("deference is not abdication").
[Note 17] Carbone's testimony at trial regarding the Lowell Street ROW was consistent with the contents of a letter that he wrote on July 15, 1999 to the Building Commissioner, in which he indicated that the driveway was "in continuous use throughout the history of [Locus]."
[Note 18] This testimony is corroborated by a letter received from the Building Commissioner on November 20, 1999 warning Plaintiffs of alleged violations in "gaining access" to Locus via the Lowell Street ROW. Additionally, there was presumably at least one use of the Lowell Street ROW in 2010 that precipitated the Cease and Desist Order.
[Note 19] See, e.g., Plainville Asphalt Corp. v. Town of Plainville, 20 LCR 217 , 220 n.4 (Mass. Land Ct. 2012) (Plainville's one-year period superceded by 40A's two years); Champagne v. Members of the Bd. of the N. Attleborough Zoning Bd. of Appeal, 11 Mass. L. Rep. 684 (Mass. Super. Ct. 2000) (North Attleborough's one year period superceded); Solem v. Curry, 8 LCR 239 , 240, 244-245 (Mass. Land Ct. 2000) (Cambridge's 30-day period superceded).
[Note 20] Tocci contends that this representation was technically true at the time, as he ceased use for periods of months in order to quell complaints about the use. However, no particular periods are described.
[Note 21] Plaintiffs quote language from Brotherhood of Alpha Upsilon, Inc. v. Zoning Bd. Appeals, 15 Mass. App. Ct. 991 (1983), which holds that in an enforcement case, the municipality has the burden of proof. That may be so, but Plaintiffs have overlooked the previous sentence, which clearly distinguishes Brotherhood from the instant case: "Nor is this an instance in which the landowner must rely on a nonconforming use." Brotherhood at 992. See also, Bartlett v. Board of Appeals, 23 Mass. App. Ct. 664 , 671 (1987). Placing the burden on the plaintiff to maintain a nonconforming use is in line both with the general disfavor the law shows to such uses and with the Woburn ordinance's mandate for their strict regulation. Ordinance § 7.2.
[Note 22] As a practical matter, based on the findings in this decision, it is a moot issue whether the one year or two year period applies, as the findings indicate a gap of at least two years.
[Note 23] The full text of Ordinance § 7.4 is as follows:
"No nonconforming use or structure shall be reinstated once it is abandoned or once it is not used for a period of one (1) year."
[Note 24] It bears mention that Tocci allegedly made this statement to attorneys for the residential abutters, but no evidence exists, other than Tocci's subsequent letters and testimony, that such a statement was made to anyone other than these attorneys.
[Note 25] Tocci's letter also stated, "[w]hoever has reported to you that we are accessing our property from Lowell Street [via the Lowell Street ROW] has provided you with misinformation." Tocci conceded at trial that though he represented to the Building Commissioner that he was not using the Lowell Street ROW as a point of access, he did continue that use. Plaintiffs do not appear to have ever applied for a special permit.
[Note 26] Actions of similar nature (though to the opposite end) were dispositive in other cases involving abandonment of nonconforming uses. See, e.g., Dobbs, 339 Mass. at 684 (advertising rental of commercial space showed obvious intent to not abandon commercial use, in spite of failure to actually rent). Parallel law can be found for other forms of abandonment as well. See, e.g., Lasell College v. Leonard, 32 Mass. App. Ct. 383 (1992) (easement not abandoned by one plaintiff because of statements evincing intent to retain in spite of disuse).
[Note 27] This court also notes the potential policy concerns that might arise, should a party's representations to a Building Commissioner carry such little weight that they are not deemed indicative of that party's intentions, including that of abandonment.