Plaintiffs Ronald T. Plotka (Plotka) and Humphrey Street Realty Associates, LLC., (together, Plaintiffs) filed their unverified Complaint for Declaratory and Injunctive Relief on April 27, 2010, seeking 1) reversal of Defendant Town of Swampscott Zoning Board of Appeals (the ZBA) decision to enforce the Inspector of Buildings (Building Inspector) violation notice relative to a sign; 2) judgment annulling the ZBAs denial of Plotkas special permit application for such sign because such denial was arbitrary, capricious, and contrary to law; and 3) judgment directing the Building Inspector to issue a building permit for such sign. The ZBA and the Building Inspector (collectively the Town) filed their Verified Counterclaim on August 2, 2010, seeking 1) judgment affirming the ZBAs denial of Plotkas appeal of the violation notice; 2) judgment declaring Plotka, in erecting his sign, violated Sections 188.8.131.52 and 184.108.40.206 of the Swampscott Zoning Bylaw (the Bylaw); and 3) permanent injunction prohibiting Plotka from erecting a sign that does not comply with the Bylaw and an order for Plotka to remove his sign. Plotka filed an Answer to the Verified Counterclaim on December 20, 2010.
Plaintiffs filed their Motion for Summary Judgment on May 31, 2011, together with Supporting Memorandum, Statement of Material Facts, and Affidavits of Ronald T. Plotka (Plotka Affidavit 1), Kenneth B. Shutzer, Esq., David Earley, Brittany Pickett, Jason Do, Michelle Wright, Katherine Do, Tiffany Stannard, Kyle Beatrice, and Ilan Amaroc. The Town also filed its Motion for Summary Judgment on May 31, 2011, together with Supporting Memorandum and Statement of Material Facts. On June 30, 2011, Plaintiffs filed their opposition to the Towns Summary Judgment Motion, together with the second Affidavit of Ronald T. Plotka (Plotka Affidavit 2) and Affidavit of Coreen S. Sullivan, Esq., and the Town filed its opposition to Plotkas Summary Judgment Motion with the Affidavit of Alan Hezekiah. On July 8, 2011, the Town filed a Motion to Strike the affidavits from business owners along the Humphrey Street Corridor because the statements did not reflect the affiants personal knowledge, and portions of Plotka Affidavit 1 because Plotka Affidavit 1 included hearsay and statements of personal opinion and belief (Motion to Strike 1), a Motion to Strike portions of Plotka Affidavit 2 (Motion to Strike 2) because Plotka Affidavit 2 included hearsay and statements of personal opinion and belief, and its Reply to Plaintiffs opposition to its Motion for Summary Judgment. On the same day, Plaintiffs filed their opposition to the Towns Motion to Strike 1 and a Reply to the Towns Opposition of their Motion for Summary Judgment. Plaintiffs filed their opposition to the Motion to Strike 2 on July 14, 2011, together with Affidavit of Carl D. Goodman, Esq. A Summary Judgment hearing was held on August 3, 2011, and at that time all motions were taken under advisement.
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. Cassesso v. Commr of Correct., 390 Mass. 419 , 422 (1983); Cmty. Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
This court finds that the following facts are not in dispute:
1. Plotka has conducted a dental practice at 293 Humphrey Street, Swampscott, Massachusetts (Locus) since 1970, and Locus is owned by Plaintiff Humphrey Street Realty Associates, LLC. Locus is located on ocean front property.
2. The current Bylaw was adopted in May 2000. [Note 1]
3. Locus is located in a Residence A-3 District near the Humphrey Street Corridor which contains businesses in the B-1 zoning district.
4. Pursuant to Article VI of the Bylaw, a sign is considered to be a structure. Bylaw § 220.127.116.11 indicates professional signs located in residential zoning districts shall not exceed six square feet in area and only one sign is allowed per lot. Bylaw § 18.104.22.168(a)(vi) limits signs in B-1 zoning districts to no more than 30 inches tall.
5. Plotka has maintained a professional projection sign [Note 2] at Locus since 1970. When Plotka moved his office to Locus in 1970, Dr. Drake (who had conducted his dental practice there since 1948) had two signs, a flat sign on the side of the building and a projection sign attached to the front of the building. Plotkas original sign (the Old Sign) replaced Dr. Drakes projection sign. The Old Sign was two-sided and hung from the building by a bracket. One side of the Old Sign, including the bracket, was 19.44 square feet (70"H x 40"W); excluding the bracket, one side was 13.89 square feet (50"H x 40"W).
6. According to Article VI of the Bylaw, [o]nly one side of flat, back-to-back, signs need to be included in calculating sign area and, structural members not bearing advertising matter shall not be included unless internally or decoratively lighted . . .
7. The Old Sign has been repaired various times, including re-securing the Old Sign to the building, gluing and stapling the Old Sign back together, and repainting the Old Sign. The Old Sign was blown down in late fall/early winter of 2008/2009 and Plotka chose not to rehang it.
8. Plotka filed an application with the ZBA for a special permit to install a new sign on Locus in July 2008. Plotka went before the ZBA on August 27, 2008. After presenting his application before the ZBA, Plotka withdrew such application before the ZBA issued a decision.
9. In June 2009, Plotka filed an application for a variance for a new sign but withdrew his application before the ZBA issued a decision.
10. Prior to November 30, 2009, Plotka, without a building permit, installed a new, one sided facade sign, [Note 3] measuring 42 square feet, on the building on Locus (the New Sign). [Note 4]
11. On November 30, 2009, the Building Inspector issued a violation notice to Plotka (the Violation Notice), ordering him to immediately remove the New Sign. The notice stated: Your sign not only exceeds the size limits of the By-Law, but it was also installed without the benefit of a building permit. You are hereby ordered to immediately remove all signage in excess of the six square foot limit of the By-Law.
12. Plotka filed both an appeal of the Violation Notice and a request for a special permit (the Special Permit) pursuant to Section 22.214.171.124 of the Bylaw on February 9, 2010.
13. The ZBA held a hearing on Plotkas petitions on March 31, 2010, at which time the ZBA unanimously voted to deny Plotkas request for the Special Permit and to uphold the Violation Notice (the ZBA Decision). The ZBA filed its decision with the Town Clerk on April 14, 2010. The ZBA Decision stated:
after hearing and consideration of all the evidence, the Board . . . voted unanimously to:
1. Deny the Petitioners request for a Section 6 Special Permit, and
2. Uphold the decision of the Building Inspector as stated in the Enforcement Letter.
Both parties agree the New Sign does not conform to the Bylaw. The parties dispute whether Plotka should be issued the Special Permit which would allow him to construct the New Sign on Locus. Plaintiffs argue the Violation Notice should be reversed on equitable grounds, and the ZBA should grant him the Special Permit because the New Sign is not more detrimental to the neighborhood than the Old Sign. In response, the Town argues Plaintiffs did not timely appeal the Violation Notice and therefore this court lacks jurisdiction to hear the appeal. The Town also argues Plotka should not be granted the Special Permit for the following reasons: 1) Plotka has not produced evidence that the Old Sign was a pre-existing nonconforming structure entitled to grandfather protection; 2) if the Old Sign was a pre-existing nonconforming structure, Plotka abandoned the Old Sign when he failed to re-fasten it after it was blown down; and 3) Plotka failed to obtain the Special Permit as is required by the Bylaw § 126.96.36.199. I shall address each of these issues in turn.
A person aggrieved by a board of appeals decision may appeal to the land court department. G. L. c. 40A § 17. 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 finding of fact, the zoning boards decision must be upheld unless the court determines, on the basis of facts it found for itself, 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). A reviewing court is highly deferential to zoning board decisions relating to special permits and gives the board discretion to deny a permit application even if the facts found by the court would support its issuance. Id. at 74.
Motions to Strike
In Motion to Strike 1, the Town requested that ¶¶ 8, 13, 14, 15, 16, 17, 25 of Plotka Affidavit 1 be struck based on allegations of hearsay and as they are statements of belief and personal opinion. Motion to Strike 1 is allowed in part. I SUSTAIN objections to paragraphs ¶¶ 13, 14, 15, 16, 17 and 25. [Note 5] The portion of ¶ 8 stating The last prior sign was hung in order to replace the sign that hung previously to that sign, as it blew down is ADMISSIBLE as personal knowledge. The remaining portion of ¶ 8 stating the sign was no longer repairable is NOT ADMISSIBLE as it is opinion and personal belief.
In Motion to Strike 2, the Town requested this court to strike ¶¶ 4, 7, 9, and 10 of Plotka Affidavit 2 based on allegations of hearsay and incompetency to testify on stated matters. As to Plotka Affidavit 2, ¶¶ 9 and 10, the objection is DENIED. Mass. R. Civ. P. 56 (e) provides that affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Plotka has conducted his dental practice at Locus since 1970. It is within Plotkas knowledge and area of expertise to testify to signage at Locus. The Towns objections to ¶¶ 4 and 7 are DENIED with respect to Dr. Drakes statements and SUSTAINED with respect to Dr. Arrols statements. G. L. c. 233 § 65 provides a declaration of a deceased person shall not be inadmissible in evidence as hearsay . . . if the court finds that it was made in good faith and upon the personal knowledge of the declarant. The objections in respect to Dr. Drakes statements are denied because Dr. Drakes notice of death was filed with this court, Dr. Drakes statements were made under personal knowledge, and there is no indication they were made in bad faith. The objections are sustained with respect to Dr. Arrols statements because the record notice of death was not filed with this court.
The Town also sought to strike the eight affidavits of business owners because their cookie-cutter character did not accurately reflect the witnessess testimony and the statements were of personal opinion and belief. This portion of the motion is GRANTED.
G. L. c. 40A § 8(a) provides that an appeal to the permit granting authority . . . may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action . . . by an order or decision of the inspector of buildings. Such appeal must be taken within thirty days from the date of the order or decision. G. L. c. 40A § 15. However, the ZBA may waive their right to assert lack of jurisdiction if they fail to timely object that the appeal was not brought within thirty days. Worcester County Christian Commun., Inc. v. Bd. of Appeals of Spencer, 22 Mass. App. Ct. 83 , 85 (1986); Hogan v. Hayes, 19 Mass. App. Ct. 399 , 402-03 (1985). In Worcester County, the zoning board reached the merits of the application, decided that the permit could not be granted as a matter of law, and advised the plaintiff of its right to appeal under G. L. c. 40A, § 17. Id. at 86. Because the ZBA did not refrain from hearing the matter on the basis of the jurisdictional ground asserted on appeal, the judge correctly rejected the boards argument, as its action constituted a waiver of the claimed jurisdictional defect. Id. at 85.
In the case at bar, the Building Inspector issued Plotka the Violation Notice on November 30, 2009, and Plotka did not file an appeal of the Violation Notice until February 9, 2010, 71 days after the Violation Notice was issued. However, on March 21, 2010, the ZBA heard Plotkas appeal of the Violation Notice and did not challenge the filing date. The ZBA voted to both 1) to deny Plotkas request for a special permit, and 2) to uphold the Violation Notice. Therefore ZBA reached the merits of the Violation Notice. As a result, I find that the ZBA waived its right to object to an untimely appeal of the Violation Notice and is precluded from now raising the jurisdictional issue. [Note 6]
A. The Old Sign as a Pre-existing, Nonconforming Structure
G. L. c. 40A § 6, which provides grandfather protection to nonconforming structures and uses, states zoning ordinances and by-laws shall not apply to structures or uses lawfully in existence . . . before the first publication of notice . . . but shall apply to any change or substantial extension of such use. . . to any reconstruction, extension, or structural change of such structure and to any alteration of a structure . . . for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . . . Pre-existing nonconforming structures . . . may be extended or altered provided, that no such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.
Bylaw § 188.8.131.52 allows lawfully existing nonconforming . . . structures [to] continue. Bylaw § 184.108.40.206, titled Non-Conforming Structures, Other Than Single and Two-Family Structures states the ZBA
may award a special permit to reconstruct, extend, alter, or change a nonconforming structure in accordance with this section only if it determines that such reconstruction, extension, alteration, or change shall not be substantially more detrimental to the neighborhood.
The reconstruction, extension, or structural change of such nonconforming structures so as to increase an existing nonconformity . . . shall require the issuance of a dimensional special permit or variance, as applicable from the board of appeals.
Bylaw §220.127.116.11, titled Non-Conforming Signs in Residential Districts states
The extension, alteration, reconstruction or change of non-conforming signs for professional offices in residential districts may only be permitted by special permit issued by the Board of Appeals (so-called Section 6 Special Permit) upon a determination that such extension, alteration, reconstruction or change is not substantially more detrimental than the existing nonconforming sign to the neighborhood...
The party seeking the protected status of a special permit bears the burden of proof to satisfy the requirements of the permit. Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 (1990); Derby Refining Co. v. City of Chelsea, 407 Mass. 703 , 712 (1990). If the party with the burden fails to satisfy a part of the bylaw that is critical to his position, failure of proof will result and he will not be entitled to the special permit. Bartless v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 672. Thus, Plaintiffs must produce evidence that the Old Sign was a pre-existing nonconforming structure and thus exempt from complying with Bylaw § 18.104.22.168, which mandates professional office signs in any residential district shall not exceed (6) six square feet in area. The Town argues Plaintiffs failed to produce evidence that the Old Sign was lawfully in existence prior to the current Bylaw, thereby preventing Plaintiffs from benefitting from grandfather protection.
The current version of the Bylaw was adopted in May 2000. In 1970, Plotka replaced a former sign with the Old Sign. [Note 7] Plotka represents that the Old Sign hung on the building from 1970 until the Old Sign blew down in 2008/2009. [Note 8] However, Plotka did not introduce any Bylaw that was in effect at the time the Old Sign was erected. It is not known whether the Old Sign was a pre-existing nonconforming structure because the date that the first Bylaw was enacted is unknown. As a result, I find that Plaintiffs did not meet their burden of proof to determine that the Old Sign was a pre-existing, nonconforming structure. On remand, as discussed, infra, the parties are urged to introduce evidence relevant to the disposition of this issue.
B. Status of the Special Permit
Bylaw § 22.214.171.124 restricts professional offices located in residential districts to only one sign that does not exceed six square feet per lot. The Bylaw indicates [o]nly one side of flat, back-to-back, signs need be included in calculating sign area and structural members not bearing advertising matter shall not be included unless internally or decoratively lighted. The Old Sign was nonconforming because it was 13.89 square feet in size. The New Sign is nonconforming because it is forty-two square feet in size. Thus, the New Sign substantially increases the existing nonconformity; its calculable area is over three times the size of the Old Sign. As a result, under either Bylaw § 126.96.36.199 or Bylaw § 188.8.131.52, supra, the New Sign would require a special permit provided that the Old Sign was grandfathered. In addition, Plaintiffs New Sign might also require a variance, depending on which Bylaw section is determinative. [Note 9]
In the event that Plaintiffs meet the requirements for petitioning for a special permit, they have the burden of showing that the New Sign would not be substantially more detrimental to the neighborhood. Neighborhood is a flexible term, and the ZBA has a great deal of discretion in making such a determination.
The flexibility of the term neighborhood as used in G.L. c. 40 § 6 . . . facilitates the exercise of the wide discretion which reviewing courts accord zoning authorities when they consider and balance localized interests of whatever kind of character (so long as such interests are relevant to the legitimate purposes of zoning) that may be affected by any proposed alteration in an existing nonconforming structure or use.
Davis v. Zoning Bd. Of Chatham, 52 Mass. App. Ct. 349 , 361-62 (2001). Locus is located in a Residential A-3 district and is in the vicinity of the Humphrey Street Corridor, which includes businesses in the B1 zoning district. Plotka argues the New Sign is aesthetically consistent with other signs in the neighborhood (including signs related to both residential and commercial structures) because the neighborhood signs do not have a unified size or style. In this regard, Plotka submitted eight affidavits of company owners along the Humphrey Street Corridor, all but one of which owners are located in the B-1 district, that stated the New Sign is aesthetically pleasing and uniform with signs in the area and, as a result, argues that he should have been granted a special permit. Plaintiffs also argue that the New Sign is less detrimental to the neighborhood because, as a facade sign, it is safer than a projection sign. The Town argues that Plotkas neighborhood is residential because his property is located in an A-3 residential zoning district which limits the size of signs to six square feet, and the sign significantly and substantially deviates from the Bylaw (the New Sign is seven times the allowed size in the residential district). The Town also points out that the New Sign violates the size requirements for signs located in the B1 zoning district.
If it is found that Plaintiffs meet the requirements for applying for a special permit, and as a result this court has the jurisdiction to review the ZBA Decision, G. L. c. 40 § 9 requires the ZBA to make a detailed record of its proceedings, indicating the vote of each member upon each question . . . and setting forth clearly the reason for its decision and of its official actions . . . . The refusal to grant a special permit did not require detailed findings by the board of appeals, Brockton Public Market, Inc. v. Bd. of Appeals of Sharon, 357 Mass. 783 , 783 (1970), but the facts relevant to the denial . . . must be stated. MacGibbon v. Bd. of Appeals of Duxbury, 369 Mass. 512 , 516 (1976) (internal citation omitted). In the case at bar, the ZBA failed to state any facts relevant to its denial of Plotkas Special Permit request.
Despite the ZBAs failure to state its reasoning, The circumstances in which a court may resolve a controvery . . . by ordering a board of appeals to issue a special permit . . . are extremely narrow. Simply annulling a decision which denies an application for such a permit . . . will be of no assitance to the applicant and will often serve not to terminate the underlying controversy but to prolong it in the form of further applications, hearings, decisions, and possible appeals. . . . such undesirable results may be avoided by giving the board an opportunity . . . to state more fully the reasons for its decision . . . .
Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 717 (1974). As a result, the ZBA Decision shall be remanded back to the ZBA for proceedings consistent with this decision. Plaintiffs, as appellants, shall be allowed to participate in further proceedings. [Note 10] Williams v. Bldg. Comm. Of City of Boston, 1 Mass. App. Ct. 478 , 481 (1973); Planning Bd. of Cambridge v. Bd. of Zoning Appeal of Cambridge, 7 Mass. App. Ct. 785 , 789 (1979).
The Town argues that even if the Old Sign was a pre-existing nonconforming structure, and as a result enjoyed grandfather protection, Plotka abandoned the Old Sign when he failed to re-hang it after it was damaged during a storm in 2008/2009, and instead built the New Sign. Bylaw § 184.108.40.206 states that a nonconforming use or structure which has been abandoned, or not used for a period of two (2) years, shall lose its protected status and be subject to all the provisions of this zoning by law. The Town argues that Plotka violated both sections of the Bylaw, i.e. he ceased to use the Old Sign for a period of two years and abandoned the use of the Old Sign.
Abandonment requires the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment. Pioneer Insulation & Modernizing Corp. v . City of Lynn, 331 Mass. 560 , 565 (1954). Abandonment is primarily a question of fact but when all the evidence is before the court, a question of law is presented. Paul v. Selectmen of Scituate, 301 Mass. 365 , 370 (1938). Additional facts beyond non-use must be present before property is considered abandoned. Derby Refining Co. v. City of Chelsea, 407 Mass. at 709. It is necessary to show that evidence of things done or not done which carr[y] the implication of abandonment will support a finding of intent, whatever the avowed state of mind of the owner. [Note 11] Dobbs v. Bd. of Appeals of Northampton, 339 Mass. 684 , 686-87 (1959).
The Town argues Plotka abandoned the Old Sign when he replaced it with the New Sign prior to obtaining a special permit; he intentionally and voluntarily removed the Old Sign and did not have an intention to rehang it. The Town also claims that the Old Sign has not been used in two years, and therefore loses any protected nonconforming status is may have had by operation of law. [Note 12] In Plotka Affidavit 2, Plotka claims that the Old Sign was blown down in a storm; it was not his intention to take it down. Plotka claims he always has intended to make use of a sign at Locus, but herein lies the issue: use of a sign is not necessarily use of the Old Sign, and it is not clear from the facts what structure (if any) may have been grandfathered. It technically appears that the Old Sign has been abandoned as a specific and definable structure, because even though it seems to have been destroyed by accident, that specific sign was not fixed or reconstructed, but rather it was abandoned and the New Sign, which is in a different location and of a different size and shape, took its place. If the Old Sign, specifically and alone, encompassed the entirety of the structure arguably protected, then it may be that by not reconstructing and rehanging it as it was before it was damaged, Plotka abandoned the structure and the New Sign would not enjoy grandfathered protection. However, since the Old Sign was destroyed by a storm, not by Plotkas direct actions, and G. L. c. 40A § 6 permits municipalities to regulate such instances, the Bylaw provides protections for this type of contingency for protected nonconforming structures. Specifically, Bylaw § 220.127.116.11, titled Reconstruction of Nonconforming Structures states:
Notwithstanding anything herein to the contrary, any nonconforming structure may be reconstructed after a fire, explosion, or other accident, provided that such reconstruction is completed within twelve (12) months after such fire, explosion, or other accident, and provided that the building(s) as reconstructed shall be only as great in volume or area as the original nonconforming structure, and further provided that reconstruction is, as applicable, approved by the Site Plan Special Permit Granting Authority pursuant to Section 18.104.22.168. Such time for reconstruction may be extended for up to an additional twelve (12) months, if the request is made before the expiration of the original 12-month period, by the Board of Appeals for good cause. (emphasis added).
A nonconforming structure which has been demolished or removed as a result of other than by fire, explosion or other accidental cause shall not be rebuilt except as a conforming structure unless a special permit is granted by the Board of Appeals... [Note 13] This provision contemplates that protected nonconforming structures may retain their protected status and be reconstructed if they are destroyed by accident. Though it is clear that the New Sign does not meet the requirements of Bylaw § 22.214.171.124, as it has a substantially greater volume than the Old Sign, this provision illustrates that the Towns argument concerning the timing and actions resulting in abandonment are less persuasive in light of the protection afforded by the Bylaw, i.e. under the Bylaw a person whose protected structure is destroyed by accident does not, through abandonment, lose the grandfathered status simply because they choose to construct a new structure instead of repairing the old. Therefore, if the Old Sign was a grandfathered structure, the Town must consider the New Sign under either Bylaw § 126.96.36.199 or Bylaw § 188.8.131.52.
Finally, the Old Sign, alone, might not be the protected structure at Locus. It may be that Plotkas possible protection extends more broadly to signs generally, or business signs, or projections signs. If this is the case, then the fact that Plotka did not identically reconstruct and replace the Old Sign might not extinguish his possible grandfather protection, rather, it might extend to the New Sign or to another sign more similarly situated to the Old Sign. Unfortunately, there is not enough evidence before this court to make a determination as to the exact nature of the possible protected structure. Therefore, on remand I urge the parties to introduce facts and evidence addressing this issue more thoroughly.
As a result of the foregoing, I remand this matter to the ZBA to reopen the public hearing consistent with this decision. This court shall retain jurisdiction of this matter. Judgment shall enter upon the resolution of the remaining issues.
[Note 1] Neither party put into evidence the Bylaw that was in effect when the Old Sign, as hereinafter defined, was erected.
[Note 2] A projection sign hangs perpendicular to the building.
[Note 3] A facade sign lies flat against the building.
[Note 4] The exact date Plotka erected the New Sign is not in evidence.
[Note 5] The Affidavit of Kenneth B. Shutzer, which was not contested, contained some of the same statements as in Plotka Affidavit 1. However, these statements relate to earlier filings by Plaintiffs and are not relevant to the outcome of this case.
[Note 6] With respect to the merits of the Violation Notice, Plaintiffs argue that the Town cannot challenge the prior nonconformity because it did not object to the existence of the Old Sign under the prior Bylaw. Even if the Old Sign violated the prior Bylaw, however, the Town is not estopped from enforcing the current Bylaw because it allowed the Old Sign to remain on Locus. The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers. Cullen v. Building Inspector of North Attleborough, 353 Mass. 671 , 675 (1968). The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest in zoning that cannot thus be set at naught . . . . Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162-63 (1977) (internal citations omitted). Thus, the Town did not waive its right to challenge the legality of the Old Sign. Moreover, since the Violation Notice deals with the validity of the New Sign, such analysis will ride on the status of the Special Permit, which is discussed at length, infra. As a practical matter, Plotkas ability to retain the New Sign depends mainly on his ability to obtain a Special Permit.
[Note 7] There are no arguments, and no evidence, that any sign prior to the Old Sign was grandfathered.
[Note 8] Even though the records on file with the Swampscott Building Department relating to Locus only contained documents from 1983 to the present, except for a document regarding building renovations in 1965 and a pool installation in 1968-1969, and no documents were found regarding any signs located on Locus, Plaintiffs representations that the Old Sign has been in existence since 1970 is uncontested.
[Note 9] The Town argues that even if a special permit were allowed, the Bylaw also requires a variance because the New Sign increases an existing nonconformity. Gale v. Zoning Bd. Of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011) (under the second except clause in G. L. c. 40A §6's first paragraph, single and two-family residences are afforded special treatment in relation to other nonconforming structures concerning alteration or addition of the nonconformity, under which a variance requirement is precluded) is not controlling, as Locus involves a commercial use rather than a residential use. The ZBA should address this issue on remand as well.
[Note 10] Plaintiffs shall have the opportunity to provide additional information relative to the grandfather status of the Old Sign, and the ZBA shall have the opportunity to state reasons for its decision. A determination of the grandfathered status of the Old Sign is necessary in order for the ZBA to set forth clearly its reasons for the special permit determination because, if no such protection exists, a variance, not a special permit may be required. See Roberts-Haverhill Assoc.v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 717-718 (1974) (it is proper for a trial court to order such further proceedings, including a new hearing, in order for a zoning board to make further findings of fact, state more fully the reasons for its decision, or instruct the board to reconsider an application in light of stated legal principles different from what the board previously considered).
[Note 11] In Dial Away Co., Inc. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 165 (1996), the plaintiff purchased a parcel of land in 1969 that contained a dwelling and a garage. The structures were lawfully built. Id. at 166. In 1969 the dwelling was destroyed and in 1990, the garage was razed. Id. at 171-72. In 1993, the plaintiff sought to erect a dwelling on the property, but the property only then contained fifty percent of the required square footage. Id. The record before the court did not indicate the nature of the demolitions, but the court found abandonment occurred because the lapse of time following the demolition-twenty-three years-is so significant that abandonment exists as matter of law. Id. at 172. The plaintiffs actions carried the implication of abandonment and supported the finding of the requisite intent to abandon. Id.
[Note 12] Though the exact date that the sign was blown down is not known, the parties contend that it was late 2008 or early 2009. Since Plaintiffs filed suit in April 2010, it does not appear that two years had lapsed in relation to the use of the Old Sign, therefore only abandonment, not discontinued use, is at issue.
[Note 13] I note several inconsistencies with the Bylaw. There are a number of provisions that are relevant to disposition of this case and each seems to have different standards applicable under our facts. For instance, § 184.108.40.206 would require a special permit and a variance, § 220.127.116.11 (which is directly on point) would only require a special permit, § 18.104.22.168 may require site plan approval or may require no administrative action at all. These various requirements should be considered on remand and a determination should be made as to which requirements of which provisions should be applied and the court urges the Town to consider these variations when it next amends the Bylaw.