BOUTIN vs. GILL ZONING BOARD OF APPEALS, MISC 10-440199

Plaintiffs filed their unverified Complaint on September 28, 2010, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Town of Gill Zoning Board of Appeals (the "ZBA") which issued a special permit to construct a pavilion (the "Pavilion") to Defendant Franklin County Boat Club, Inc. (the "Boat Club") on property owned by Defendant First Light Power ("First Light") located at 39 Oak Street, Gill, Massachusetts ("Locus"). The ZBA filed its Answer on October 8, 2010. The Boat Club filed its Answer on November 9, 2010. A telephonic case management conference was held on November 10, 2010.

Plaintiffs filed their Motion for Summary Judgment on April 29, 2011, together with supporting memorandum and Plaintiffs' Statement of Uncontested Material Facts. A telephonic status conference was held on October 14, 2011. As discussed at such status conference and pursuant to an order from this court, Plaintiffs filed a revised Motion for Summary Judgment on November 15, 2011, together with supporting memorandum and a Joint Statement of Uncontested Material Facts. [Note 4] The Boat Club filed its Opposition to Motion for Summary Judgment on December 15, 2011, together with supporting memorandum and Appendix, including the Affidavit of Charles Reum (Commodore of the Boat Club) (the "Reum Affdiavit"), dated June 2, 2011. The ZBA filed its Motion for Summary Judgment and Opposition on January 17, 2012, together with supporting memorandum. A hearing was held on all motions on February 27, 2012, and the matter was taken under advisement. [Note 5]

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Under the Town of Gill Zoning Bylaws (the "Bylaw"), Locus is located in a Village Residential district. [Note 6] The Boat Club is a non-profit organization that leases Locus, [Note 7] containing 2.53 acres and situated on the Connecticut River (the "River"), pursuant to a License Agreement from First Light. The most current License Agreement for use in the summary judgment record is dated June 12, 2007, which states that it "commences on November 1, 2006 and will terminate on October 31, 2011." [Note 8]

2. The Boat Club has used Locus as a boat club since 1976, [Note 9] and as a marina since an unknown date prior to May 29, 1997. [Note 10] A building permit (the "1976 Permit") was issued to the Boat Club on September 27, 1976, [Note 11] to install a trailer (the "Trailer") on Locus. The application for the 1976 Permit (the "1976 Application") stated that the Proposed Use was "Temporary office & meeting quarters." The 1976 Application indicated that the Trailer would be one story, measuring sixty-two feet by twelve-feet (62' x 12'), or seven-hundred forty-four (744) square feet. [Note 12] The 1976 Application indicated that the southwesterly side of the Trailer would be one-hundred ninety-seven feet from the River, that the northwesterly side of the Trailer would be one-hundred ninety-eight feet from abutting property, that the northeasterly side of the Trailer would be seventy-six feet from abutting property, and that the southeasterly side of the Trailer would be fifty-five feet from abutting property.

3. A building permit was issued to the Boat Club on May 1, 1979 (the "1979 Permit"), to construct a deck (the "1979 Deck"). The application for the 1979 Permit (the "1979 Application") indicated that the application was for a "WOOD DECK ON FRONT OF CLUBHOUSE". [Note 13] As shown on the 1979 Application, under Site or Plot Plan for Applicant Use, the front was the (southwesterly) side facing the River. The 1979 Application did not indicate the purpose of such deck. The Agreed Plan shows a now-removed structure labeled "EXISTING TRAILER WITH PORCH", which the Agreed Email states "includes the [1979 Deck]." As indicated on the Agreed Plan, the Trailer and the 1979 Deck together measured twenty-eight feet by fifty-six feet (28' x 56'), or one-thousand five-hundred sixty-eight (1,568) square feet. [Note 14]

4. Commencing in 1985, the Bylaw required that all lots have a minimum frontage. As amended in 1985, the Bylaw required "not less than [two hundred] feet of frontage on a public way" in all districts. The Bylaw currently requires a minimum frontage of one hundred feet in Village Residential districts. Land access to Locus is by way of Oak Street Extension, [Note 15] which terminates in a parking area on Locus. Locus has no frontage, as defined in the Bylaw, [Note 16] and is therefore a nonconforming lot.

5. Commencing in 1990, the Bylaw required a special permit for non-profit recreational uses (in all zoning districts). [Note 17] [Note 18] The boat club use of Locus is therefore a nonconforming use. The marina use of Locus is therefore a nonconforming use to the extent that it began before 1990.

6. A special permit was issued to the Boat Club on May 29, 1997, to add twelve additional boat slips. [Note 19]

7. A special permit was issued to the Boat Club on December 22, 2009 (the "2009 Permit") to construct a new clubhouse (the "Clubhouse") in the same location as the Trailer. [Note 20] The 2009 Permit was not appealed. The application for the 2009 Permit (the "2009 Application") stated that the Clubhouse would be one story, measuring twenty-seven feet by fifty-seven feet (27' x 57'). The Agreed Plan indicates that the Clubhouse is twenty-eight feet by fifty-six feet (28' x 56'), or one-thousand five-hundred sixty-eight (1,586) square feet. The Agreed Email states that the Clubhouse "replaced the [T]railer and [1979 Deck] [,] which were removed."

8. On May 3, 2010, the Boat Club and First Light submitted an application (the "Pavilion Application") to the ZBA for a special permit (the "Pavilion Permit") to construct the Pavilion on Locus. The Pavilion is minimally defined in the Boat Club's Opposition to Motion for Summary Judgment as "a roofed structure with open sides." The Reum Affidavit states that "[t]he proposed pavilion is about [twenty-eight feet] by [sixty feet] and consists of the roof from the old club headquarters", i.e., the Trailer. The Pavilion Application included for completion a blank space labeled "5. Description of Proposed Use/Work/Project: (Use additional sheets, if necessary.)". In such space was handwritten "To use old TRussEd ROOF foR a PaVillion." [Note 21]

9. In a decision dated August 24, 2010, and filed September 7, 2010, the ZBA granted a special permit to "construct an Americans With Disabilities (ADA) compliant deck (the "2010 Deck") and ramp (the "Ramp") to allow egress from the [C]lubhouse." [Note 22] Such special permit was subject to six conditions of approval, including that "[t]he deck [would] be constructed to be approximately [twelve] feet wide by [sixty] feet long . . ." [Note 23] As shown on the Agreed Plan, the 2010 Deck is attached to the Clubhouse, facing the River. The Agreed Plan indicates that the 2010 Deck measures twelve feet by an unspecified dimension and was constructed on an unspecified date in 2010. The Agreed Plan indicates that the Ramp is a four-foot ramp and was attached to the northwesterly side of the Clubhouse on an unspecified date in 2010.

10. In a decision dated September 7, 2010, and filed September 13, 2010 (the "ZBA Decision"), the ZBA granted the Pavilion Permit with twelve conditions ("the Conditions"). [Note 24] The ZBA Decision made a finding that "the construction of the pavilion will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use."

11. The Pavilion was constructed on an unspecified date in 2010. As shown on the Agreed Plan, the Pavilion is located easterly of the Clubhouse and labeled "pavillon [sic] 2010". As shown on the Agreed Plan and as stated in the Agreed Email, the Pavilion is "not attached to the [C]lubhouse."

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Plaintiffs argue that the ZBA Decision exceeded the authority of the ZBA and was arbitrary, capricious, and unreasonable, and that the ZBA Decision did not make proper findings. The ZBA argues that the ZBA Decision is valid, and that the ZBA did make proper findings. The Boat Club asserts that the ZBA's findings may not provide a sufficient basis for summary judgment. All parties agree that the use of Locus as a boat club is protected as a preexisting nonconforming use. [Note 25]

Plaintiffs argue that the Pavilion Permit was issued based on a finding of an extension of a preexisting nonconforming structure, and that the ZBA's finding is not valid because the Pavilion was a new structure and not connected to an existing structure on Locus (the Clubhouse). Plaintiffs argue on the basis of Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 (2011), that the Pavilion cannot be an alteration of a nonconforming structure, because it is an "entirely new, stand alone structure." The ZBA argues in reply that the ZBA found, in contrast to the Appeals Court in Schiffenhaus, that the addition of a small accessory structure was an extension of a nonconforming use, and that the Bylaw allows such an extension.

Both of these arguments rely on G. L. c. 40A, § 6 ("§6"), which provides the minimal protection for nonconforming structures (or uses), in that

a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun . . . but shall apply to any change or substantial extension of such use . . . to any reconstruction, extension or structural change of such structure . . . Pre-existing nonconforming structures or uses may be extended or altered, provided, [sic] 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.

Provided that a nonconforming structure (or use) of Locus falls under the protection of § 6, it is governed by § 13(C) ("§ 13") of the Bylaw, which states, in part:

Other pre-existing legal nonconforming structures or uses may be extended, altered, reconstructed, or changed in use on special permit by the Board of Appeals upon a finding by the Board that such alteration, extension, reconstruction or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

A. Nonconforming use.

The ZBA bases its argument on the alleged extension of a preexisting, nonconforming boat club use. However, such nonconforming use is not the fundamental issue in this case, which instead turns on the Pavilion's status as a nonconforming structure. Furthermore, contrary to the ZBA's analysis, it is not fully clear from the summary judgment record that the Pavilion is a change or substantial extension of a preexisting, nonconforming use within the meaning of § 6. [Note 26] [Note 27] However, since the parties argued this use issue, I will briefly address it.

The Supreme Judicial Court ("SJC") considers three factors when analyzing whether a nonconforming use has changed and is therefore not exempt from a new zoning bylaw without the required finding by the permit granting authority:

The first test is whether the present use reflects the nature and use prevailing when the zoning by-law took effect. . . . The second test is whether there is a difference in the quality or character, as well as the degree, of the present use. . . . The third test is whether the current use is different in kind in its effect on the neighborhood. Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 663 (1973) (emphasis added). [Note 28]

With regard to the first test, the Pavilion reflects the nature and use prevailing on Locus when the Bylaw was amended in 1990 to require a special permit for a recreational use. The Pavilion would not significantly change the nature and prevailing use of Locus as a place where people gather for recreational and social purposes. [Note 29] As approved by the ZBA, the Pavilion is not "an activity beyond the scope of the original nonconforming use." [Note 30]

The second test examines both the quality or character of the use and the degree of use. See Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 , 869 (1980) (citing Powers at 659-660). The Pavilion would not result in a significant difference in the quality or character of the use as compared with 1990, insofar as the Pavilion would not introduce a major change in operations or processes; people would continue to gather at Locus, hold events, and disperse. The Pavilion would not result in a residential use of Locus, or a use of Locus to manufacture, store, distribute, or sell a product, except perhaps as incidental to recreational purposes. [Note 31] The Pavilion would not impact who uses Locus, unlike changes in use that attract a new clientele. [Note 32] [Note 33] However, the extent to which the Pavilion might impact the degree of the use as compared with 1990 is unclear from the record. [Note 34] Even if the same people continue to use Locus, the Pavilion would allow substantially more people - the dimensions involved suggest twice as many - to use Locus at the same time, at least when weather permits. Likewise, the Pavilion would allow Boat Club members to host a greater number of guests at one time. Moreover, the availability of the Pavilion might result in events being held at Locus that might otherwise occur elsewhere. Inasmuch as the record lacks specificity about how the Pavilion would actually be used, this court cannot determine whether the Pavilion would result in a significant difference in the degree of the boat club use.

With regard to the third test, it is also unclear from the record whether the Pavilion would cause the use of Locus to be different in kind in its effect on the neighborhood than such use was in 1990. The record does not provide specific information about either the effect of the boat club use on the neighborhood in 1990, or how the Pavilion would impact such effect. The Conditions clearly intend to mitigate certain potential negative impacts and to require compliance with regulations. [Note 35] However, a use can have a different kind of effect without violating the Conditions or becoming illegal. [Note 36] For example, the Pavilion's open sides may increase the likelihood that abutters may be affected by light or noise from Locus at hours that the Conditions do not govern. On the other hand, such disturbances could also result from the use of Locus without a Pavilion, since they are not unique to open air structures. [Note 37] [Note 38] Without a more complete record relative to the effect of the boat club use on the neighborhood, and relative to the proposed and approved uses of the Pavilion, this court cannot determine whether the Pavilion would cause the use of Locus to be different in kind in its effect on the neighborhood.

On the basis of the foregoing, I find that this court cannot determine on this summary judgment record whether the construction of the Pavilion as an accessory structure to the Clubhouse is a change or substantial extension of the marina and boat club use, within the meaning of § 6.

Nevertheless, this case can be resolved on this summary judgment record, in spite of the deficiencies relative to use. It is not necessary to determine whether the Pavilion would change or substantially extend the boat club use, inasmuch as this court finds, as discussed, infra, that the Bylaw does not allow the Pavilion, because the Pavilion would be a new structure on a nonconforming lot.

B. Nonconforming structure.

Section 2(C) of the Bylaw provides that "[n]o building or structure shall be erected or land used except as permitted in [§ 2] and all other sections of [the Bylaw]."

The ZBA asserts that it found that the Pavilion is an "accessory structure", although that term does not appear in the ZBA Decision - or in the Bylaw, except in connection with (residential) conservation developments [Note 39] and wireless communication facilities. [Note 40] The Pavilion clearly meets the Bylaw's definition of a "structure", being "[a] combination of materials assembled at a fixed location to give support or shelter or for other purposes . . ." § 17. However, the Bylaw provides little guidance relative to accessory structures. The Bylaw clearly contemplates the presence of accessory structures. See, e.g., § 6(G)(7) (requiring that "residential structures and accessory structures within [a conservation] development . . . be set back . . .); see also § 2(H)(4) (requiring that home-based business ". . . operations, including incidental storage, [be] carried on within the principal or accessory buildings . . ."); § 2(H)(9) (referencing "a structure such as a garage or barn"); § 2(C)(6)(b) (referencing a "Roadside Stand of Agricultural Products"). However, the Bylaw does not define the term "accessory structure", as such. The Bylaw defines an accessory building as "[a] building subordinate to and located on the same lot as the principal building, the use of which is customary to that of the principal building." § 17. Such definition does not include the Pavilion, because the Bylaw defines a "building" as "[a] structure, enclosed within exterior walls or firewalls . . ." Id. However, based on the Bylaw's definition of an accessory building, and on the context of its references to accessory structures, [Note 41] it is reasonable to infer that the Pavilion is an accessory structure, being subordinate to and located on the same lot as the Clubhouse, and having a use customary to that of the Clubhouse.

Significantly, the Bylaw does not specify the circumstances under which an accessory structure (or accessory building) is allowed. [Note 42] Furthermore, the Bylaw does not provide any criteria regarding the construction or location of an accessory structure (or accessory building), except as relates to (residential) conservation developments and wireless communication facilities, or except as may relate to accessory use. [Note 43] The requirement relative to wireless communication facilities is not relevant to Locus; [Note 44] the criteria for conservation developments is not relevant to Locus and also requires the same setback for accessory structures as residential structures. [Note 45] Inasmuch as the Bylaw does not provide relevant guidance for accessory structures as distinct from principal structures, [Note 46] this court shall apply to the Pavilion the specific provisions of the Bylaw governing structures generally. Cf. Maynard v. Tomyl, 347 Mass. 397 , 399 (1964) ("The lot size requirement is determinative. . . . Even if [the structure] could have been ruled an accessory structure . . . , no right is shown to make such a structure into a nonconforming dwelling."). Such provisions include the Bylaw's frontage requirements.

Section 3 of the Bylaw requires that a lot in a Village Residential District have a minimum of one hundred feet of frontage. A primary purpose of frontage is to provide "practical, safe, and efficient access." See Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 401 (2000); see also G. L. c. 41, § 81R (not distinguishing between frontage and access requirements). Frontage requirements therefore "serve important safety functions in 'ensuring access to vehicular traffic and availability of utilities and municipal services.'" Davenport v. Planning Bd. of Dennis, 76 Mass. App. Ct. 221 , 227 (2010) (quoting Central St., LLC v. Board of Appeals of Hudson, 69 Mass. App. Ct. 487 , 492 (2007). The Pavilion, as proposed, appears to conform to the requirements of the Bylaw, apart from being located on a nonconforming lot. [Note 47] However, even as a conforming or accessory structure, the Pavilion would allow larger gatherings on Locus, thereby increasing the potential demand for municipal services and vehicular access, including emergency access. As the SJC stated in MacNeil v. Avon, 386 Mass. 339 , 342 (1982),

[A] multiplicity of . . . units may reasonably be thought to increase the amount and size of firefighting equipment required to respond to fire, and to require more frontage. . . . [C]itizens . . . may reasonably . . . conclude[] that, as the number of . . . units increases, the number of motor vehicles entering and leaving the premises and parking along the frontage also increases, creating congestion and interfering with access by emergency vehicles. [Note 48]

By adding to the demand for access to and egress from Locus, the Pavilion could increase or create hazards or inefficiencies on Locus resulting from lack of frontage.

Moreover, in addition to ensuring access, frontage requirements provide "density controls." Davenport at 227. Locus is not an undersized lot, and the Clubhouse occupies only a small part of Locus. Nevertheless, the Pavilion would "at the very least, tend to reduce the open space" on Locus. Cf. Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 , 861 (2005). Since Locus is nonconforming relative to the frontage requirement, the Bylaw would not allow an additional structure on Locus, unless an exception applies.

The ZBA Decision found that "the construction of the [Pavilion] will not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use." Such a finding invokes the standards of § 6 and § 13, and implies that the Pavilion might be protected as an accessory structure to the Clubhouse. [Note 49] However, even though the Clubhouse may be protected as a preexisting nonconforming structure, such protection does not extend to the Pavilion as an accessory building. By their terms, § 6 and § 13 would only allow construction of the Pavilion if the Pavilion extended or altered the Clubhouse as a structure, [Note 50] which it does not, as those terms are used commonly and in precedent.

The Pavilion does not extend the Clubhouse as a structure. "To extend means to stretch out or to draw out or to enlarge a thing." Brooks v. Registrar of Motor Vehicles, 1 Mass. App. Ct. 78 , 80 (1973) (quoting Schlosser Leather Co. v. Gillespie, 157 Tenn. 166, 167); see also Maselbas v. Zoning Bd. of Appeals of North Attleborough, 45 Mass. App. Ct. 54 , 56 (1998) ("The new structure does not extend the nonconforming home physically by enlarging the footprint or otherwise . . .") (emphasis added). [Note 51] An extension of the Clubhouse would result simply in a larger clubhouse. In contrast, construction of the Pavilion resulted in a new Pavilion in the vicinity of a Clubhouse of unchanged dimensions. As stated in the Agreed Email and shown on the Agreed Plan, the Pavilion "is not attached to the [C]lubhouse," but is instead freestanding.

The Pavilion does not alter the Clubhouse as a structure. The Bylaw does not define "alteration". However, in Schiffenhaus, the Appeals Court made clear that a town cannot "ignore the legislative provision requiring conformity with current zoning requirements by the simple expedient of declaring every change . . . to be no more than an 'alteration' . . ." 79 Mass. App. Ct. at 605. In Schiffenhaus, the Appeals Court decided that the definition of "alteration" in another town's "broadly worded" bylaw did not include the construction of "an entirely new building in a different location, which [was] also completely different in appearance and more than four times the size of its predecessor." See 79 Mass. App Ct. at 604-05. The Pavilion has features similar to those that led the Schiffenhaus Court to reject a project as a mere alteration. Like the alleged alteration in Schiffenhaus, the Pavilion is a new building in a different location, in that it is a freestanding structure, separate from the Clubhouse. Similarly, the Pavilion is different in appearance from the Clubhouse, at least insofar as it has open sides. [Note 52]

Furthermore, the Pavilion is not a replacement for the Clubhouse, as though the Clubhouse were altered in a very broad sense by being relocated or reconfigured into a complex of multiple buildings. [Note 53] The new structure in Schiffenhaus was alleged to be an alteration of the existing structure insofar as the new structure was going to take the place of the old structure as the only single family residence allowed on a certain lot. In the case at bar, the Pavilion would not take the place of the Clubhouse. The Clubhouse would not be torn down or, as in Schiffenhaus, remodeled to qualify as another kind of structure. The Schiffenhaus court noted that "[t]he by-law [in that case was] broadly worded and contemplate[d] within the definition of 'alteration' almost any conceivable change, including that of location, to an existing structure." Id. at 605 (emphasis added). In the case at bar, the Pavilion is clearly something new - not the Clubhouse by another name in another place - and therefore cannot be an alteration. [Note 54] See also Werner, where Plaintiffs challenged a town's issuance of a special permit for the construction of new buildings on a lot with nonconforming uses and existing nonconforming buildings. The court concluded,

Permission to enlarge a nonconforming building does not include the construction of a separate building in order to enlarge a nonconforming use. . . . Had Harwich intended to permit the extension of a nonconforming use through the construction of new and separate buildings, language could have been employed which would have more clearly expressed that intent. Werner at 650-51.

On the basis of the foregoing, I find that construction of the Pavilion cannot be allowed pursuant to the Pavilion Permit, inasmuch as the Pavilion is not an extension, alteration, reconstruction, or change in use [Note 55] of any preexisting nonconforming structure on Locus.

Since the Bylaw does not allow an additional structure on Locus, insofar as Locus is a nonconforming lot, the Boat Club cannot obtain the zoning relief it seeks through a special permit. Therefore, if it intends to maintain the Pavilion on Locus, the Boat Club should take additional action, such as applying for a variance. See Cox v. Board of Appeals of Carver, 42 Mass. App. Ct. 422 , 426 (1997) (affirming "that [a] board exceeded its authority in granting a special permit because, absent a variance, [a] use of [certain] land . . . did not meet [an] . . . area requirement . . . under [a] . . . bylaw").

Inasmuch as the Bylaw does not allow the Pavilion to be constructed pursuant to the Pavilion Permit, it is not necessary to consider whether the ZBA made proper findings in the ZBA Decision.

As a result of the foregoing, the ZBA's Motion for Summary Judgment is DENIED, inasmuch as the ZBA Decision does not provide a valid basis for the Pavilion Permit relative to the Pavilion as a nonconforming structure. As a result of the foregoing, Plaintiffs' Motion for Summary Judgment is ALLOWED, inasmuch as the Pavilion cannot be allowed pursuant to § 6 and § 13, not being an extension, alteration, reconstruction, or change in use of a preexisting nonconforming structure on Locus.

Judgment to enter accordingly.

[Note 1] Stanley Johnson, Geraldine Johnson, Shawn Sevoian, and Kathryn Sevoian were originally Plaintiffs, but an assented to Motion to Dismiss was filed relative to Stanley Johnson and Geraldine Johnson on October 25, 2010, and relative to Shawn Sevoian and Kathryn Sevoian on November 12, 2010.

[Note 2] Max Brody ("Brody") and Joanna Frankel ("Frankel") were originally Plaintiffs, but an assented to Motion to Dismiss was filed relative to Brody and Frankel on November 22, 2010. This court received an undated letter from Brody and Frankel stating that they "never told anyone that [they] wanted to become involved in this lawsuit and [they] never gave [their] permission for [their] names to be used in the lawsuit." Such letter denies that Brody and Frankel brought this action, that they were represented by counsel, and that they authorized any papers being signed in their names.

[Note 4] For purposes of this case, the materials filed by Plaintiffs on November 15, 2011, supersede the materials filed on April 29, 2011.

[Note 5] A telephonic status conference was held on June 27, 2012, with all parties present, at which this court requested that the parties provide additional information relative to the past and present locations of structures on Locus. In response, the parties jointly indicated the location of various structures on a copy of an undated plan titled "PRELIMINARY PROGRESS PRINT" (the "Agreed Plan"). This court received the Agreed Plan as an attachment to an email dated June 29, 2012 (the "Agreed Email"), which contained clarifying notes.

The Agreed Plan (without the locations jointly indicated by the parties) is also page eight of Exhibit A to the Boat Club's Opposition.

[Note 6] The Village Residential district did not exist, as such, on October 9, 1985, the only districts then being Residential and Residential-Agricultural. The record indicates that Locus was in a Residential-Agricultural district.

[Note 7] The record does not contain a formal statement of the Boat Club's purpose, as might be in articles of organization. Section 17 of the Bylaw defines a club as "[a] nonprofit association of persons operated for recreational, social, or similar purposes, whose facilities are used primarily by its members."

[Note 8] No extension of such License Agreement is in the record, although the parties agree that the Boat Club continues to lease Locus from First Light.

[Note 9] The Reum Affidavit states that the Boat Club "has existed since 1950 and has continuously existed in Gill, Massachusetts since 1976."

[Note 10] The parties do not devote much attention to use of Locus as a marina and do not always distinguish such use from use of Locus as a Boat Club. The ZBA's Motion for Summary Judgment states: "The Boat Club is a non-profit recreational use consisting of a clubhouse, parking lot, open grounds and a marina." The Boat Club indicates in its Opposition to Motion for Summary Judgment that Locus was being used as a marina in 1985. As noted, infra, the Boat Club received permission on May 29, 1997, to add boat slips, implying that a marina use existed at that date. Furthermore, the Department of Environmental Protection issued a license allowing the Boat Club to "expand an existing private marina by the placement, relocation, and maintenance of bottom-anchored floats." Such license is numbered 6301, dated August 28, 1997, and recorded with the Franklin County Registry of Deeds (the "Registry") at Book 3256, Page 74.

[Note 11] The summary judgment record indicates that the 1976 Permit was approved on September 27, 1976. However, the parties' Joint Statement of Uncontested Material Facts states that the permit was issued September 22, 1976.

[Note 12] Seven-hundred forty-four square feet is a little less than seven-tenths of one percent of the area of Locus.

[Note 13] The Boat Club states in its Opposition to Motion for Summary Judgment that the 1979 Deck was sixty feet by twelve feet, or seven-hundred twenty square feet. Such dimensions also appear on the 1979 Application as a handwritten note below the estimated cost. Apart from this note, which has no clear label or context, the 1979 Application does not give the dimensions of the 1979 Deck, although the drawing implies that the 1979 Deck would be similar in size to the Trailer.

[Note 14] These dimensions indicate a discrepancy in the record. If the 1979 Deck measured seven-hundred twenty-square feet and the Trailer measured seven-hundred forty-four square feet, they together occupy only one-thousand four-hundred sixty-four square feet, one-hundred four square feet less than the combination of the two shown on the Agreed Plan.

[Note 15] It is not clear from the record whether Oak Street Extension is a public or private way.

[Note 16] Section 17 of the Bylaw defines frontage as "[t]he boundary of a lot coinciding with a street line provided that there must be both rights-of-access and potential vehicular access across that boundary to a potential building site, and the street is a public way or subdivision way and has been determined by the Planning Board to provide adequate access to the premises . . . Lot frontage shall be measured continuously along one street line between side lot lines or, in the case of corner lots, between one side lot line and the midpoint of the corner radius. The portion of a lot fronting on a discontinued road, or a road which is not continuously constructed to a point beyond the border of the subject lot, or a way not adequate in the opinion of the Planning Board does not constitute frontage for purposes of Approval Not Required Plans."

[Note 17] As of 1985, the Bylaw required that for-profit recreational uses obtain a special permit. § 2(B)(5)(B).

[Note 18] The Bylaw does not define "recreational use." However, in the context of flood plains, the Bylaw gives "boating" as an example of an outdoor recreational use. § 15, art. V. It is undisputed that the boat club is a recreational use.

[Note 19] The Reum Affidavit states that there are currently 117 boat slips. It is not clear from the record when the first boat slips were installed or what authorized their installation.

[Note 20] The 2009 Permit was recorded with the Registry at Book 5820, Page 319.

[Note 23] The 2010 Deck should not be confused with the 1979 Deck, which had similar dimensions.

1. Adequate sanitary facilities will be provided as required by the building code and other applicable laws and regulations.

2. From 10 PM to 7 AM, the [Boat Club] shall ensure that no part of the surrounding neighborhood will be disturbed by light or noise from the [Boat Club].

3. Any additional lighting must be located or shielded to prevent shining on abutting residential properties.

4. The [Boat] Club will comply with Town noise bylaws and other noise regulations as they may exist from time to time.

5. Use of facilities is limited to members and their guests. A [Boat] Club member must be present at all times for all functions.

6. Any parking spaces lost due to the construction of the [P]avilion must be replaced toward the east side of [Locus].

8. The use of the [Boat Club] facilities will be such that the [Boat] [C]lub is able to provide adequate off-street parking.

10. Covered trash receptacles will be provided at the [P]avilion and emptied in a timely fashion in order to prevent odors and animal nuisance.

11. The [Boat] Club will operate in a manner that is not substantially more detrimental to the neighborhood than the existing operation of the non-conforming structure.

12. Copies of any responses from the building inspector regarding complaints against the [Boat] Club will be provided to the [ZBA] and the property owner.

[Note 25] It should be remembered that Locus is both nonconforming as to use and as to frontage.

[Note 26] In effect, it is unclear whether the Pavilion, as a nonconforming use, required the Pavilion Permit.

[Note 27] Even if the Pavilion were a change or substantial extension of a nonconforming use, the Pavilion's status as a nonconforming structure must be considered. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 658 n.4 ("Other cases . . . hold that the existence of a lawful nonconforming use does not permit the erection of additional buildings for the extension or enlargement of that use."); Werner v. Board of Appeals of Harwich, 2 Mass. App. Ct. 647 , 650 (1974). The ZBA's arguments erroneously imply that, since "structures or uses" can be altered under certain circumstances, a nonconformity that is allowed as an alteration to a use is not subject to regulation as a structure. On the contrary, § 13 establishes the circumstances under which either a nonconforming structure or a nonconforming use may be altered, effectively making all nonconforming structures and nonconforming uses subject to the appropriate finding by the ZBA. The provision in § 6 makes the point more clearly, stating that " . . . no such extension or alteration shall be permitted unless there is a finding . . ."

Since this court finds, as discussed, infra, that the Pavilion is impermissible as a nonconforming structure, the result in this case is the same whether or not the Pavilion extends a nonconforming use.

[Note 28] In Powers, the challenged use was already occurring. Therefore, "present use" and "current use" are analogous to the use proposed in the case at bar.

[Note 29] See First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234 , 236 (1975) (finding that crushing stone is a "new enterprise," separate from a nonconforming use of excavating and removing stone); cf. Oakham Sand and Gravel Corp. v. Town of Oakham, 7 LCR 87 , 91 n.15 (1999) (finding that the uses of a locus by two different owners both were "essentially" a "sand and gravel operation," even though the latter owner trucked in loam and had loam sales constituting two to three percent of its total sales.)

[Note 30] See Crawford v. Building Inspector of Barnstable, 356 Mass. 174 , 180 (1969) (finding that a newly constructed pier was "the creation of a wholly new facility designed especially to attract and accommodate the boating public on a large scale").

[Note 31] Cf. Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469 , 472 (1988). ("The manner of operation was to be substantially different, changing from a primarily sit-down, full-service restaurant, with a secondary commerce in take-out sandwiches, pizzas, and bakery items, to a fast food, counter service operation, with the emphasis on take-out orders."); Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 486 n.23 (1984) ("[T]here is a difference in the character and degree of use between suppliers making infrequent deliveries of materials by means of eighteen-wheel vehicles and the garaging and maintaining of eighteen-wheel vehicles for use in a trucking, general contracting, and excavating business.").

[Note 32] See, e.g., Derby Refining Co. v. City of Chelsea, 407 Mass. 703 , 713 (1990) (explaining Jasper v. Michael A. Dolan, Inc., 355 Mass. 17 (1968)) ("This change would likely have resulted in a transformation in clientele, and a consequent change in impact on the . . . neighborhood."); Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 213 (1981) ("A predominately middle-aged and older clientele has been displaced by young people who are encouraged to patronize the hotel for its bars and nightlife.").

[Note 33] The Conditions included: "5. Use of facilities is limited to members and their guests. A Club member must be present at all times for all functions." The record does not contain information relative to an increase in the size of the membership as a result of the construction of the Pavilion.

[Note 34] The Reum Affidavit states: "We expect to use [the Pavilion] for outings and similar uses as we have previously with a temporary tent (June to September)." Nothing in the record indicates whether such a tent was in use prior to 1990 or prior to 1985.

2. From 10 PM to 7 AM, the [Boat Club] shall ensure that no part of the surrounding neighborhood will be disturbed by light or noise from the [Boat Club].

3. Any additional lighting must be located or shielded to prevent shining on abutting residential properties.

4. The [Boat] Club will comply with Town noise bylaws and other regulations as they may exist from time to time.

[Note 36] This court notes that the Conditions require the Boat Club to "operate in a manner that is not substantially more detrimental to the neighborhood than the existing operation of the non-conforming structure." This provision carries little weight here, since it recites the standard of §§ 6 and 13 without adding specific expectations or safeguards.

[Note 37] See City of Boston v. Back Bay Cultural Ass'n, Inc., 418 Mass. 175 , 183 (1994) ("According to the city, the noise that it seeks to eliminate emanates from buildings providing entertainment; patrons gathering, entering or leaving; motor vehicles arriving or departing; and patrons traveling city streets.") (emphasis added); see also Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495 , 501 (1940) (discussing noise from a proposed bowling alley); Totorella v. H. Traiser and Co., Inc., 284 Mass. 497 , 499 (1933) (discussing noise from a cigar factory).

[Note 38] Although this court does not rely on the Boat Club's own analysis of its use of Locus, this court notes that the Boat Club applies the foregoing test from Powers in its Opposition to Motion for Summary Judgment. The Boat Club states with respect to the second test that an "increase [in] the volume of use" is not expected; the Boat Club states with respect to the third test that "[t]raffic and noise concerns are not expected to change."

[Note 39] Section 6 of the Bylaw states: "A Conservation Development shall consist of . . . residential dwellings where the houses are arranged . . . into . . . groups . . ., and are separated from adjacent properties by undeveloped land . . ."

[Note 41] See § 16(D)(7) ("Accessory structures housing support equipment . . .") (emphasis added).

[Note 42] Section 2(H) of the Bylaw provides that "[a] business or profession is allowed as an accessory use of a dwelling by right, provided that [certain] criteria are met." However, such a use would not convert the dwelling into an accessory structure or building. Section 2(H) does not explicitly allow an accessory structure or building as a matter of right in connection with the allowed practice of a business or profession, although it clearly contemplates that such structures or buildings may exist.

[Note 43] As of 1985, the Bylaw required a special permit for "Accessory Building Structures and Uses" connected with a "Public Utilities" use. § 2B(8)(B)(II). The Bylaw currently divides "Public Utilities" use into categories that do not reference accessory structures as such. §2C(8)(b).

[Note 44] See § 16(D)(7) ("Accessory structures housing support equipment for towers shall not exceed 400 square feet in size and 15 feet in height.").

[Note 45] See § 6(G)(7) ("All residential structures and accessory structures . . . shall be set back from the boundaries of the development by . . . at least fifty (50) feet . . .").

[Note 46] Cf. Goldhirsh v. McNear, 32 Mass. App. Ct. 455 , 456 (1992) (referencing a bylaw providing that "only a one-story accessory structure could be built within twenty feet of [a] side lotline . . . ").

[Note 47] As the ZBA points out, the Pavilion would meet all of the dimensional requirements (other than minimum frontage) laid out in § 3 of the Bylaw.

[Note 48] See also Hanna v. Framingham, 60 Mass. App. Ct. 420 , 424 n.8 (2004) (implying that development makes a property more "dependent on adequate access").

[Note 49] As discussed, supra, the ZBA relies mainly on its interpretation of the Pavilion as an extension of a nonconforming use. Therefore, it is not fully clear how much protection, if any, the ZBA believes the Pavilion is entitled to as an extension of a nonconforming structure irrespective of that use.

[Note 50] Provisions relative to reconstruction and change in use do not apply to the Pavilion. Reconstruction implies that a new structure takes the place of a previous structure that has been destroyed or razed. See Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657 , 661 (1956) (not allowing "the erection of a new building in place of the old buildings to be devoted to the nonconforming use" where the term reconstruction did not appear in the bylaw); see also Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726 , 737 n.17 (2007) (noting a lower court's finding that "rather than being a 'reconstruction,' [a] house was "new construction, sharing no architectural features or structural elements with the old, standing entirely on a different part of the lot (and partly on the lot next door), very different in scale and in kind"). The Pavilion would not result in a change in use for the reasons discussed, supra.

[Note 51] Courts generally describe as extensions those features that cause a structure to occupy more space, but do not result in a new, separate structure. See, e.g., Arsdale v. Town of Provincetown, 344 Mass. 146 , 149 (1962) (overhead projections at an entrance); Gilbert v. Repertory, Inc., 302 Mass. 105 , 106 (1939) (theater marquees); Geragosian v. Union Realty Co., 298 Mass. 104 , 106 (1935) (fire escapes); Shea v. National Ice Cream Co., Inc., 280 Mass. 206 , 209 (1932) (factory exhaust pipes); Wolfman v. Board of Appeals of Brookline, 115 Mass. App. Ct. 112 , 117 (1983) (balconies).

[Note 52] Cf. Welch v. Post Office Square Co., 292 Mass. 137 , 140 (1935) ("The erection of the new block was not such an incidental or minor alteration as might be held to have been anticipated when the agreement was made. It was an entirely new structure on additional land of approximately half the size of the original building.")

[Note 53] This court does not here decide that the Bylaw's definition of "alteration" would allow such relocation or reconfiguration of a structure.

[Note 54] This court notes that, pursuing the nonconforming use rationale discussed, supra, the Boat Club asserts in its Opposition that "[w]e are not talking about extending or altering a preexisting nonconforming structure. . . ."

[Note 55] Section 13 provides that a special permit may allow "nonconforming structures or uses" to be "changed in use." As used here, the phrase "change in use" refers to the potential change in use of a preexisting nonconforming structure (the Clubhouse).

MISC 10-440199

October 12, 2012

Sands, J.

DECISION