In this action, plaintiffs Falmouth Auto Center, Inc., and Joann Souza, as trustee of the Reine Children Trust No. 1, (collectively, Falmouth Auto), challenge a January 20, 2011 decision of the Falmouth Zoning Board of Appeals (the Board), whose members are defendants. The challenged decision denied Falmouth Autos application for a special permit, made pursuant to Section 240-3 of the Falmouth Zoning Bylaw (the Bylaw), for the expansion of a lawful prior nonconforming use as defined by G.L. c. 40A, § 6. Falmouth Auto contends that its operation of an automotive repair garage open to the public should have been allowed as a permissible expansion of a prior nonconforming use of the subject property for the repair of automobiles. Falmouth Auto claims the repair of automobiles at the subject property is protected as a lawful prior nonconforming use, which came into existence as a permissible accessory use to the dwelling on the site. The Board argues that the use began as accessory, but, ultimately, grew beyond the scope of an accessory use. At that point, the Board argues, the auto-related use became illegal under the Bylaw, and, therefore, not protected as a lawful prior nonconforming use under G. L. c. 40A, §6.
The plaintiffs have moved for summary judgment, and the Board has filed a cross-motion for summary judgment. For the reasons stated below, I conclude that the present use of the subject property is not a lawful prior nonconforming use, and that the Board acted within its lawful authority in denying the plaintiffs application for a special permit for the expansion of a nonconforming use.
The following material facts are found in the Rule 56 record and are not in dispute for the purposes of this motion:
1. The town of Falmouth (the Town) adopted its first zoning bylaw in 1926. The Property was located in a Single Residence District under the 1926 Bylaw.
a. Section Four of the 1926 Falmouth Zoning Bylaw provided, in relevant part, that in a Single Residence District the following uses were allowed by right: one family detached houses; farms, greenhouses, nurseries, and truck gardens; and such accessory uses as are customarily incidental to any of the above uses.
b. Section Thirteen of the 1926 Zoning Bylaw provided: Accessory uses shall be on the same lot with the buildings of the owner or lessee, and shall be such as to not alter the character of the premises on which they are located or impair the neighborhood."
2. In 1948, the Property (and the not-yet-acquired Additional Parcel) were rezoned into an Agricultural District and have remained in an Agricultural District since that time.
a. Section Seven of the 1948 Falmouth Zoning Bylaw listed the following uses, among others, as allowed by right in an Agricultural District: Any use permitted in a Single, General Residence or Institutional District, which included (1) a one family detached house, and (9) such accessory uses as are customarily incidental to any of the above uses, Contractors yards and automobile repair shops were not permitted in an Agricultural District.
3. In 1979 the Town amended the definition of accessory uses, with a correction added in 1983, as follows: Accessory Use: A use of land or building on the same lot with, and customarily incidental but secondary to, a permitted use, except that if more than 30% of the floor area or 50% of the lot area is occupied by such use, it shall no longer be considered accessory.
4. Under the Bylaw as in effect when the present matter was heard by the Board, and currently, contractors yard and automobile repair shop are uses that are prohibited in an Agricultural District (in which the subject property is located) and which are permitted in a Light Industrial or Heavy Industrial District.
5. At no time since zoning was adopted in Falmouth in 1926 have automobile repair shops, contractors yards, garbage hauling businesses or trucking businesses been permitted in the single-family residence or agricultural districts in which the subject properties have been located.
THE PROPERTY AND ITS USE.
6. The property at 657 East Falmouth Highway (the Property) in East Falmouth has been owned by members of the Reine family since 1933. The Reine family has owned and controlled the property at 15 Old Menauhant Road (the Additional Parcel) since it was acquired by Melvin Reine in 1975.
7. The Property and the Additional Parcel are contiguous properties. (When the context so allows, for the period subsequent to 1975, the Property and the Additional Parcel are referred to collectively as the Property.)
8. When the Property was acquired in 1933, it was used in conjunction with a twelve-acre family farm operated at another location. No farming was ever conducted at the Property. [Note 1] The Property was improved by a single-family dwelling and facilities for the storage and repair of trucks and other equipment used in the off-site farming operation, and used for hauling crops for other local farms.
9. In the 1960s, in addition to maintaining a support operation for the familys off-site farming business, John A. Reine, Sr., the owner of the Property, contracted with the Commonwealth of Massachusetts and used the trucks stored and maintained on the Property for plowing public roads, and for a private gravel and asphalt operation.
10. By the 1970s, the Reine family had increased its use of its trucks and equipment for off- site trucking and excavation. They contracted again with the Commonwealth of Massachusetts to provide road-sanding services and also with the Town to grade and sand its beaches. The family farming operation at another location was discontinued.
11. In addition, the owner stored, repaired, and maintained trucks and equipment at the Property for the operation of his own trucking business at the site from 1966 until 1998.
12. In the 1970s, a portion of the Property, including the garage, was rented to A.W. Lawrence, a garbage hauling contractor, who parked and repaired his trucks at the Property.
13. Beginning in 1977, the adjacent Additional Parcel at 15 Old Menauhant Road, acquired in 1975, which was wooded when acquired, was cleared and used for the storage, repair, and maintenance of trucks in the same manner as on the 675 E. Falmouth Highway property.
14. Beginning in 1978, the Reine family also stored and maintained trucks on the Property and the Additional Parcel for a garbage hauling operation called Five Star Enterprises. Five Star Enterprises continued to operate at the Property and the Additional Parcel until 2005.
15. In 1979, a fence was erected on the Property, screening and separating the residence on the Property from commercial activities occurring on the rest of the Property and the Additional Parcel.
16. In 1995, the Reine family opened an automobile repair shop open to the public, called Five Star Repair Shop, at the Property and the Additional Parcel.
17. By 2006, the Five Star Repair shop had been purchased by a non-family member, John Boyle. Additionally, the garbage hauling company continued to operate at the Property and the Additional Parcel.
18. Falmouth Auto Center, Inc. (Falmouth Auto) opened as a general vehicle repair shop in 2007 and operated on the Property and the Additional Parcel until 2012.
19. In 2009, the Towns Zoning Enforcement Officer alerted Falmouth Auto that it required a special permit to allow the use of an automobile repair shop on the Property and the Additional Parcel.
20. On April 3, 2010, Falmouth Auto, Inc. filed an application for a special permit, pursuant to Section 240-3 of the Bylaw, requesting permission to change, alter, or extend a preexisting nonconforming use of automobile repair and maintenance on the Property and the Additional Parcel so that the use could be operated open to the public. On January 20, 2011, the Board voted to deny the application for the special permit. The Boards decision was filed with the Town Clerk on February 1, 2011, and the plaintiff filed this appeal.
21. No permits were ever applied for or issued for the various trucking operations or the automobile repair business operated at the Property and the Additional Parcel.
Standard of Review.
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boazova v. Safety Ins. Co., 462 Mass. 346 (2012); Mass. R. Civ. P. 56(c). The party moving for summary judgment bears the burden of proving that there are no material issues of fact and that there is a right to judgment as a matter of law. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 (1997); Foley v. Matulewicz, 17 Mass.App. 1004 (1984). The facts should be viewed in the light most favorable to the party facing summary judgment in determining whether any disputes of fact exist. Catlin v. Board of Registration of Architects, 414 Mass. 1 (1992). The substantive law at issue in the case determines whether a fact is material. Carey v. New England Organ Bank, 446 Mass. 270 (2006). Material facts bear on the outcome of the case. Jupin v. Kass, 447 Mass. 41 (2006). Bare assertions and conclusions regarding a partys understandings, beliefs and assumptions are not sufficient to withstand well-pleaded motion for summary judgment. Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 (1989), review denied 406 Mass. 1101 . When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass R. Civ. P. 56(c).
The courts task in reviewing a local zoning boards decision denying an application for a special permit to expand a nonconforming use was summarized by the Supreme Judicial Court in Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 (2012):
Judicial review of a local zoning board's denial of a special permit involves a combination of de novo and deferential analyses The trial judge makes his own findings of facts and need not give weight to those the board has found. See G.L. c. 40A § 17;...The judge then determines the content and meaning of statutes and by- laws and ... decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application (citations omitted). We accord deference to a local board's reasonable interpretation of its own zoning bylaw with the caveat that an incorrect interpretation of a statute ... is not entitled to deference.
After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an unreasonable, whimsical, capricious or arbitrary manner.. .This stage of judicial review involves a highly deferential bow to local control over community planning. The board is entitled to deny a permit even if the facts found by the court would support its issuance. The judge nonetheless should overturn a board's decision when no rational view of the facts the court has found supports the board's conclusion. Deference is not appropriate when the reasons given by the board lacked substantial basis in fact and were in reality mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law..
Id. at 474-475 (internal citations omitted).
The plaintiffs seek a determination that the Board exceeded its authority in denying plaintiffs application for a special permit authorizing the extension of a nonconforming use. The Board reasoned that the plaintiffs use of the Property, beginning in 1933, was lawfully accessory to the residential and farming use of the Property. [Note 2] The Board determined that these uses continued to be lawful accessory uses even subsequent to 1979, but that any extension of these uses was without the benefit of a special permit or other permission from the Town of Falmouth and that such extension by the Applicant or predecessor in title did not render any of the uses pre-existing nonconforming. The Board denied the application for a special permit to expand the nonconforming use of the Property and the Additional Parcel to include public automobile repair.
The plaintiffs argue that the various trucking and automotive uses of the Property and the Additional Parcel, by exceeding the fifty percent lot area maximum allowed by the Bylaw for accessory uses, transformed what had been a lawful accessory use into a lawful prior nonconforming use. The plaintiffs further argue that the Board, by failing to recognize the prior nonconforming use status of the existing uses of the Property and the Additional Parcel, erred and exceeded its authority. For reasons stated more fully below, I find that the Board did not exceed its authority, because the various trucking and automotive uses of the Property were never lawful accessory uses and were in fact simply prohibited uses existing at the Property and the Additional Parcel without the benefit of any necessary approvals or permits. Accordingly, such uses were not lawful accessory uses, nor did they have the status of lawful nonconforming uses, and the Board was neither authorized nor obligated to allow their expansion.
Accessory Uses at the Property and the Additional Parcel.
The Board concluded that the vehicle storage, repair and maintenance activities taking place at the Property and the Additional Parcel were lawful accessory uses as late as subsequent to 1979, but also found that any extension of these uses after 1933 was without benefit of a special permit or other permission from the Town, and thus, the extensions of the use were not rendered lawfully nonconforming. The Boards reasoning is awkward, since it could be construed to mean that the Board concludes that the current uses, other than automobile repair services open to the public, remain as valid lawful accessory uses. However, the Board points out that the various other uses at the two contiguous properties are being conducted without the benefit of any permits. The facts found by the Board, with respect to the presence of a farm at the Property, are inconsistent with the undisputed record before the court showing that the farming operations to which the activities at the Property and the Adjacent Parcel were said to be accessory, were in fact conducted at another location, elsewhere in Falmouth. A use cannot be accessory to a use conducted elsewhere than on the same property. As far back as the 1926 version of the Bylaw, accessory use was defined as, [a] use of land or a building customarily incident to and located on the same lot with another use of land or a building (emphasis supplied). [Note 3] Thus, given the undisputed fact that there was no farming taking place on the Property even in 1933, the uses at the Property, in order to be lawfully accessory uses, would have to be accessory to the only use on the Property that was allowed as a matter of right: the single-family dwelling.
As described by the plaintiffs, the uses at the Property over the years include truck storage, repair and maintenance in support of farming uses at other locations; storage, repair and maintenance of trucks used in an excavation business and a plowing business; parking of trucks for a family-owned trucking business; storage, repair and maintenance of trucks used in a family- owned trash-hauling business; and storage, maintenance and repair of trucks used in non-family- owned trash-hauling business. None of these uses were conducted with the benefit of any permits issued by the town; none of them were at any time permitted uses in the Single Residence District or the succeeding Agricultural District in which the Property is located; and none of them can be fairly characterized, under even the most generous interpretation, as customary or incidental to a single-family dwelling so as to be classified as lawful accessory uses. The word incidental in zoning by-laws or ordinances incorporates two concepts: It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance.... But incidental, when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of incidental would be to permit any use which is not primary, no matter how unrelated it is to the primary use. Henry v. Board of Appeals of Dunstable, 418 Mass. 841 , 845 (1994); see also Harvard v. Maxant, 360 Mass. 432 , 438 (1971).
The various trucking uses to which the Property was put were not subordinate to the single-family use on the Property, in that they grew to a degree that could not be called minor in significance in relation to the single house on the Property. Nor were the trucking uses at the Property attendant or concomitant to the single-family residential use; in fact, they bore no relation at all to the residential use of the Property. They were commercial trucking operations, and cannot be said to be related in any way to the residential use. Commercial repair of vehicles is not a use that can be accessory to a single-family residential use. Town of Stow v. Pugsley, 349 Mass. 329 (1965). Storage of trucks in support of an off-site contracting business is not a valid accessory use, even where the principal use is a commercial nursery and the trucks are used in a related landscaping business. Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95 , 102 (1953).
Accordingly, I conclude that if there ever was a lawful accessory use of the Property, it has long since been overwhelmed and superseded by the commercial trucking operations that have been the principal use of the Property for decades, at least since the 1960s.
The plaintiffs seek to justify the use of the Property for an automobile repair business open to the public as an expansion of the nonconforming use of the Property for the storage, repair and maintenance of trucks. This requires a determination whether the trucking uses at the Property were lawful preexisting nonconforming uses. Having determined that the trucking operations were never lawful accessory uses, the first step in determining whether the trucking operations were lawful preexisting nonconforming uses is to determine whether they were otherwise lawful when commenced.
Section 6 of G.L. c. 40A provides as follows with respect to nonconforming uses:
[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence...but shall apply to any change or substantial extension of such use...to provide 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 or uses may be extended or altered, provided...that such change, extension or alteration shall not be substantially more detrimental than the conforming use to the neighborhood.
Under the statute, only uses that came into existence lawfully are exempt from current regulations. Bruno v. Bd. of Appeals of Wrentham, 62 Mass. App. Ct. 527 , 530-531 (2004). An illegal use does not acquire status as a lawful nonconforming use by virtue of the expiration of the six-year statute of limitations prescribed under G.L. c. 40A, § 7. Patenaude v. Zoning Bd. of Appeals of Dracut, 82 Mass. App. Ct. 914 , 915 (2012); Bruno v. Bd. Of Appeals of Wrentham, supra at 536-537. In order to be a lawful nonconforming use, the use must be not violative of the by-law when it began. Town of Stow v. Pugsley, supra at 334.
[A] use achieves the status of nonconformity for statutory purposes if it precedes the coming into being of the zoning regulation which prohibits it. Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 529 (1990). Ultimately, the question is not merely whether the use is lawful but how and when it became lawful. Id. at 531. In other words, a nonconforming use is a use that was permitted by right, and, subsequent to the amendment of zoning, is only permitted by special permit or is prohibited. See Shrewsbury Edgemere Assocs. Ltd. Partnership v. Bd. of Appeals of Shrewsbury, 409 Mass. 317 , 319-21 (1991). The applicant bears the burden of proving that a use qualifies as nonconforming by showing the requisite similarity between the current use and the original nonconforming use. Bridgewater v. Chuckran, 351 Mass. 20 , 24 (1966); Cape Resort Hotels v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 , 212.
The plaintiffs have conceded that no permits or approvals of any kind were issued by the town for any of the trucking operations commenced at the Property since 1933. It is also undisputed that none of the trucking uses at the Property, properly viewed as principal uses, and not as accessory uses, were permitted in the Single Residence District, or are permitted in the Agricultural District in which the Property is currently located. Therefore, the trucking operations at the Property were not lawfully commenced, and cannot gain the status of lawful, preexisting nonconforming uses, since they were not lawful when they began.
Moreover, the expansion of the trucking operations at the Property onto the Additional Parcel after it was acquired in 1975 and cleared in 1977, would be an impermissible expansion of the uses on the Property even if those uses were lawful nonconforming uses. A lawful nonconforming use on one parcel cannot be expanded onto an adjacent parcel of land acquired after the use became nonconforming. City of Revere v. Rowe Contracting Co., 362 Mass. 884 (1972). See also Oakham Sand & Gravel Corp v. Town of Oakham, 54 Mass. App. Ct. 80 , 85 (2002) (doubling of area covered by lawfully nonconforming sand and gravel operation was impermissible expansion of nonconforming use).
For the reasons stated above, I conclude that the various trucking and repair operations conducted at the Property over the last several decades are not lawful preexisting nonconforming uses, because they were not lawful when commenced, nor did they ever become lawful.
Automobile Repair Business Open to the Public.
The plaintiffs commenced the use of the Property for an automobile repair business open to the public in 1995, as noted above, without the benefit of any permits or approvals from the Town. Their purpose in applying to the Board was to legalize this use as a permissible expansion of a lawful, preexisting nonconforming use, namely, the existing trucking operations at the Property. Any changes to a lawfully existing, nonconforming use are only permitted if they are not substantially more detrimental to the neighborhood. Rockwood v. Snow Inn Corp., 409 Mass. 361 (1991); Bridgewater v. Chuckran, 351 Mass. 20 (1966). However, it is unnecessary to conduct any analysis whether the automobile repair business open to the public is substantially more detrimental to the neighborhood, since I have already concluded that the existing uses on the Property are not lawfully preexisting nonconforming uses. [Note 4] The automobile repair business is simply a prohibited use that would require a variance to operate in an Agricultural District.
Based on the foregoing, the plaintiffs have failed to show that their conduct of an automobile repair business open to the public is a valid extension of a lawful preexisting nonconforming use, exempt from applicable zoning. Nor is the use a valid accessory use with respect to the lawful residential use of the Property. Accordingly, the Board did not exceed its authority in denying the plaintiffs application for a special permit for the expansion of a nonconforming use. The plaintiffs motion for summary judgment therefore is DENIED, and the defendants cross-motion for summary judgment is ALLOWED.
Judgment to enter accordingly.
[Note 1] Affidavit of John A. Reine, Sr., paragraph 6. The Boards apparent belief that farming was conducted at the Property is not supported by the record.
[Note 2] The undisputed facts presented to the court do not bear out the Boards conclusion that there was ever any farming conducted at the Property.
[Note 3] In the 1979 version of the Bylaw, accessory use is defined as, A use of land or building on the same lot with, and customarily incidental but to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupied by sue use, it shall no longer be considered accessory.
[Note 4] Even if the existing trucking operations on the Property could be classified as a lawful preexisting nonconforming use, it is unlikely that the addition of an automobile repair business open to the public could pass the three-part test, summarized in Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966), for determining whether the new use is a lawful expansion of the nonconforming use.