ALEX CORBETT, MARY CORBETT, and VIRGINIA BROGNA, [Note 1] v. WILLIAM D. CHIN, NICHOLAS A. IANNUZZI, JR., DAVE IAIA, CRAIG WHITE, and JOHN McMANUS, as they are members of the TOWN OF BELMONT ZONING BOARD OF APPEALS, and ALOUETTE REALTY, LLC.

The plaintiffs in this action challenge the validity of a decision by the Belmont Board of Appeals (the “Board”) granting a special permit to the defendant Alouette Realty, LLC (“Alouette”) for the alteration of an existing nonconforming two-family dwelling. The special permit authorized the razing of one of the two existing units on the subject property and the construction of a new second dwelling unit.

Both the plaintiffs and Alouette have moved for summary judgment. The plaintiffs, abutters across the street from the subject property, argue that the subject property was never a lawful nonconforming two-family dwelling, but that if it was, its status as a lawful nonconforming two-family dwelling has been lost by abandonment or by non-use for at least two years. The plaintiffs further argue that the Board’s findings that the proposed alteration would not be substantially more detrimental to the neighborhood than the existing use were arbitrary and capricious. The defendant Alouette argues that it is entitled to summary judgment because the plaintiffs have failed to offer sufficient facts to support either a finding that the use as a prior nonconforming two-family was abandoned or lost to non-use, or that the proposed alteration would be substantially more detrimental to the neighborhood.

For the reasons stated below, the plaintiffs’ motion for summary judgment is DENIED; with respect to certain legal issues described herein, summary judgment is ALLOWED IN PART for the defendants.

FACTS

The following material facts are found in the Rule 56 record and are not in dispute for the purposes of these motions:

1. Alouette is the owner of the property known as and located at 123 Alexander Avenue, Belmont. (the “Property”)

2. The Property is improved by a residential structure with two dwelling units. Unit 1 is on the first floor and Unit 2 is on the second floor.

3. The residential structure on the Property was occupied as a two-family dwelling as of March 20, 1939. [Note 2]

4. The Property is presently in a single-family C zoning district under the Belmont Zoning Bylaw. (the “Bylaw”) The zoning district in which the Property lies changed from a district allowing two-family dwellings as a matter of right to a single-family district, in which two-family dwellings were not allowed as a matter of right, on March 20, 1939. The Property also became lawfully nonconforming with respect to lot area (although the record is not clear as to the date of this nonconformity).

5. Section 1.5.6 of the Bylaw provides: “A nonconforming use of a structure or land, that has been abandoned or not used for a period of two (2) years, shall not be reestablished and all future use(s) shall conform with this By-law.”

6. Section 1.4 of the Bylaw contains the following definitions:

Dwelling, Single-Family – A single residential building designed for occupancy by one family.

Dwelling, Two-Family – A single residential building designed for occupancy by two families.

Dwelling Unit – A building or portion of a building intended as living quarters for a single family having a single set of kitchen facilities (a stove plus either or both refrigerator and sink) not shared with any other unit;…

Family – One or more persons, including domestic employees, occupying a dwelling unit and living as a single nonprofit housekeeping unit; provided that if five or more persons of the group occupying said dwelling are not kindred to each other, as defined by civil law, they shall not be deemed to constitute a family.

7. Alouette has proposed to raze the second dwelling unit in the existing two-family dwelling on the Property and reconstruct a larger second unit. The reconstructed structure will conform to the setback, open space, lot coverage and building height requirements of the Bylaw.

8. The Board granted a special permit allowing the proposed alteration to the Property, finding that the proposed alteration of the building on the Property would not be more detrimental to the neighborhood than the existing structure and use.

9. The plaintiffs reside across the street from the Property, and were given notice of the hearing on the request for the special permit.

DISCUSSION

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 party’s understandings, beliefs and assumptions are not sufficient to withstand a 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 . Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass R. Civ. P. 56(c).

The plaintiffs offer several arguments as to why, on facts they claim to be undisputed on the record, they are entitled to judgment as a matter of law: (1) the lawful nonconforming use of the Property as a two-family dwelling was never established when the zoning district in which the Property is located became a single-family district in 1939; (2) one or the other dwelling unit at the Property was vacant for extended periods of time, resulting in the loss of the Property’s lawful nonconforming use status through abandonment or non-use for periods of two years or more; (3) the lawful nonconforming use status of the Property as a two-family was lost by the occupancy of both units by members of the same family for a period of four years; (4) failure to maintain the Property as a two-family dwelling while renovations were being conducted over a period in excess of two years caused the Property to lose its status as a lawful nonconforming two-family dwelling; (5) the two-family use was abandoned as a result of statements made by Peter Noonan, the brother of the manager of Alouette; (6) the two-family use was abandoned by the rental of the units to family members of the owner rather than to members of the general public; and finally, (7) the Board did not have the authority to authorize the alteration of a nonconforming use on an inadequately sized lot, and should have required a variance. [Note 3] Each of these arguments is addressed below.

1. The Lawful Nonconforming Use of the Property as a Two-Family Dwelling Commenced on March 20, 1939.

The Property was re-zoned from a two-family residential district to a single-family residential zoning district as of March 20, 1939. Alouette propounded identical requests for admissions pursuant to Mass. R. Civ. P. 36 to each of the remaining plaintiffs. The first request for admission stated as follows: “On March 20, 1939 the 123 Alexander Avenue real estate was used and occupied as a two-family residential structure and not a single family residential structure.” Each of the plaintiffs’ responses was signed only by counsel, whose signature was limited “as to objections” under the rule. None of the plaintiffs signed the responses. Rule 36 provides in relevant part with respect to a request for admission that, “The matter is admitted unless,…a written statement signed by the party under the penalties of perjury specifically (i) denying the matter or (ii) setting forth in detail why the answering party cannot truthfully admit or deny the matter; or (2) a written objection addressed to the matter, signed by the party or his attorney,…” No objection was stated with respect to request for admission no. 1, and the parties did not sign their purported response claiming an inability to admit or deny.

By their failure to sign their responses to Alouette’s Requests for Admissions as required by Mass. R. Civ. P. 36, the plaintiffs have admitted for all purposes in this action that the Property was occupied and used as a two-family dwelling as of March 20, 1939, the date of the re-zoning. See Mass. R. Civ. P. 36(b) (“Any matter admitted under this rule is conclusively established…”). Accordingly, for the purposes of this action, the lawful nonconforming status of the Property as a two-family dwelling as of March 20, 1939 is established as a matter of law.

2. There Are Disputed Facts with Respect to Alleged Extended Periods of Vacancy.

The plaintiffs offer evidence of fluctuations in electricity usage and gaps in provision of natural gas as evidence that one or the other unit at the Property was left vacant for significant periods of time, particularly from mid-2007 to mid-2010. Alouette counters with leases and copies of rent checks as evidence that the units were occupied during this period. Evidence regarding the issue of occupancy, or vacancy, of the units at the Property for any extended period of time is sufficiently disputed in the record that it would be inappropriate to find for either the plaintiffs or Alouette as a matter of law.

3. Occupancy of Both Units by Members of the Same Family Does Not Vitiate the Lawful Nonconforming Use Status of the Property.

It is undisputed that from 1991 to 1995, the then-owner of the Property, Benjamin Adler, lived in Unit 2 at the Property, while his son, Robert Lee Adler, lived in Unit 1 with his wife and children. Plaintiffs argue, without citing any legal support whatsoever, that the occupancy of the two units by members of the same family “separated by no more than one degree of kinship”, somehow is a change in use that converts the two-unit occupancy of the Property into a single- family occupancy, thereby returning it to a conforming use and causing it to lose its status as a lawful prior nonconforming use as a two-family dwelling. This argument is not supported by the Bylaw, nor is there any other support for the plaintiffs’ argument.

It is undisputed that from 1991 to 1995, the Property physically contained two dwelling units, each with its own kitchen facilities, that the building on the Property was therefore “designed” for occupancy by two families, and that each unit was occupied by persons living as a separate “housekeeping unit” as those terms are used in the Bylaw. The Bylaw defines a dwelling unit with reference to its physical facilities, not with reference to who is living in it, except to provide that no more than five unrelated persons can constitute a “family” for zoning purposes. The fact that the sole member of one “housekeeping unit” was the father of one member of the other “housekeeping unit” is nowhere to be found in the Bylaw as a disqualifying factor with regard to the continued classification of the building as a two-family dwelling, nor have the plaintiffs offered any evidence to suggest that Benjamin Adler and his son Robert Lee Adler and his family constituted a “single housekeeping unit” other than to rely on the father-son relationship. The undisputed facts are otherwise: Benjamin Adler resided in Unit 2 for many years before and after the four-year period during which Robert Lee Adler and his family resided in Unit 1, suggesting that they constituted two separate “housekeeping units”, one in each unit. It is further undisputed that during this period, the building remained one that was “designed for occupancy by two families”, with two units each equipped with separate living quarters and kitchen facilities.

Occupancy of two-family homes, many of them lawful nonconforming uses, by members of the same family (parents in one unit and adult children with their own families in the other unit; adult siblings and their spouses and children in each of two units) is not uncommon, and the plaintiffs’ interpretation would render many of these no longer lawful nonconforming uses. The plaintiffs’ interpretation of the Bylaw is not supported by the definitions in the Bylaw and is therefore incorrect as a matter of law. The plaintiffs’ argument is also not supported by the undisputed facts, which show that there were two separate dwelling units, each with separate living quarters and kitchen facilities, and that during the period 1991-1995, the two units were occupied by two separate “housekeeping units.” See Hauer v. Andover Zoning Bd. of Appeals, 20 LCR 125 , 134-135 (2012) (building without cooking facilities not a dwelling).

4. Failure to Occupy Unit 2 While It Was Being Renovated Did Not Cause the Loss of the Lawful Nonconforming Use Status of the Property as a Matter of Law.

Following the death of the former owner, Benjamin Adler, in 2008, the parties agree that Unit 2 remained unoccupied for a period in excess of two years. The plaintiffs argue that this fact, and nothing more, is enough to cause the loss of the Property’s status as a lawful nonconforming two-family dwelling. Alouette counters that the unit was being renovated during this period, and that this does not allow a conclusion that the occupancy of the Property as a two-family dwelling was therefore not “abandoned or not used” so as to cause the loss of its lawful nonconforming use status.

Section 1.5.6 of the Bylaw provides that, “A nonconforming use of a structure or land, that has been abandoned or not used for a period of two (2) years, shall not be reestablished and all future use(s) shall conform with this By-law.” Contrary to the arguments of the plaintiffs, the mere vacancy of a unit for two years does not, as a matter of law, require a conclusion that its use as a dwelling unit has been discontinued so as to cause loss of lawful nonconforming use status. In order to conclude that the Unit has been “not used for a period of two (2) years,” the evidence would have to show not only that there was no tenant in the unit, but that there was no effort to rent or otherwise occupy the unit or maintain it as a dwelling unit. Thus, where two dwelling units in a three-unit nonconforming building were left unoccupied because the owner was physically unable to maintain or manage the units for a period in excess of ten years, the nonconforming use of the building as a three-family dwelling was lost. Bartlett v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 665-666 (1987). However, although the terms “abandonment” and “discontinuance” (or nonuse) are often improperly used interchangeably (see Town of Orange v. Shay, 68 Mass. App. Ct. 358 , 362 (2007) (“[T]his interchangeable use of the terms may have engendered some confusion.”), cases discussing abandonment are instructive in examining when a use has been “not used” for the requisite two-year period. In Derby Refining Company v. City of Chelsea, 407 Mass. 703 (1990), the Supreme Judicial Court held that the failure to store oil in the tanks of an oil storage terminal for several years did not cause the terminal to lose its status as a lawful prior nonconforming use, reasoning that although the oil storage terminal was “mothballed” and was not being used to store oil, it was being marketed for sale as an oil storage terminal, and its tanks and ancillary equipment were being actively maintained so that is could continue to be used to store oil once sold to a new owner. “[T]he reasonable inference to be drawn from the manner in which Texaco shut down the facility is precisely the opposite of abandonment—that Texaco intended to preserve the facility in good condition for a profitable resale.” Id. at 709.

Although the court’s reasoning in Derby Refining Co. is in the context of a discussion of abandonment (and not “discontinuance” or non-use), the analysis remains useful in the context of whether Unit 2 was being renovated and maintained for continued use as a dwelling unit, or whether it was simply left unoccupied, with no effort to maintain or preserve the nonconforming use, i.e., whether its use as a dwelling unit had been “not used for two years” within the meaning of the Bylaw. This is especially so where, as here, the Bylaw defines a dwelling unit primarily as to whether it is “designed” for occupancy by a family, as opposed to whether it is being presently occupied by a family. Summary judgment must be denied on this issue, which remains a disputed factual issue to be determined at trial.

5. The Alleged Statements of Peter Noonan, If Made, Do Not Constitute Abandonment, as a Matter of Law.

Plaintiffs state in their Revised Statement of Undisputed Material Facts that Peter Noonan, the brother of Mark Noonan, who is the principal of Alouette, “planned to renovate the locus as a single-family dwelling and communicated his plan to abutters.” Setting aside for the moment the fact that Peter Noonan’s authority to act as an agent for Alouette capable of making such statements on its behalf is disputed, and that whether he made such statements at all is disputed, the record offered by the plaintiffs of what he is actually alleged to have said is far more equivocal than is stated by the plaintiffs in their statement of facts, and would not support a finding of abandonment as a matter of law on the basis of what is actually in the record.

In support of the allegation that Peter Noonan “planned to renovate the locus as a single- family dwelling and communicated his plan to abutters,” plaintiffs cite to the affidavits of several neighbors and the plaintiffs. The allegations in the affidavits of plaintiff Virginia Brogna and another neighbor, Frank Mason, are typical, and are in fact identical. Ms. Brogna and Mr. Mason both aver as follows: “Mr. Noonan told me that he had originally purchased the property in order to renovate it as a single family home for his daughter who was engaged to be married. Mr. Noonan said that he only decided to keep the property’s two family nature after his daughter’s engagement broke off.” Other evidence of Mr. Noonan’s statement offered by the plaintiffs is either even more equivocal, or is on its face based on hearsay and is inadmissible (Deposition of P. King: “I was getting stories after the fact about some guy that bought the property and was building a single home for his daughter who then supposedly broke up with her boyfriend.”).

Even drawing every reasonable inference from these statements in the record in the light most favorable to the plaintiffs, the statements would not support a finding of abandonment as argued by the plaintiffs. “To constitute an abandonment, the discontinuance of a nonconforming use must result from ‘the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment.’” Derby Refining Company v. City of Chelsea, supra, at 709, quoting Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560 , 565 (1954). The statements offered by the plaintiffs are alleged to have been made by Mr. Noonan in meetings with the neighbors and the plaintiffs in September 2013 in the context of his then-pending proposal to renovate the Property as a two-family dwelling, and the intent to convert the Property to a single-family dwelling is alleged by the plaintiffs to have been stated as Mr. Noonan’s original plan, which had since been abandoned in favor of renovating the building as a two-family. There is no evidence offered, or even a suggestion in the record that Mr. Noonan or Alouette ever took any steps to implement the original intent to convert the Property to a single-family dwelling, and in fact the statements, and the context in which they are offered (in the midst of discussions for the plan to renovate the building as a two-family) would not permit an inference that Alouette ever took any steps to actually implement a plan to abandon the second unit at the Property. Thus, even considering the statement offered by the plaintiffs in the light most favorable to the plaintiffs, the second prong of the abandonment test, voluntary conduct, whether affirmative or negative, which carries the implication of abandonment, cannot be met.

6. Rental of the Units at the Property to Family Members of the Owner Does Not, as a Matter of Law, Constitute an Abandonment.

The plaintiffs argue that both units at the Property are rented to members of the family of the principal of Alouette, and that consequently, “[l]easing exclusively to family members rather than soliciting the general public for the most profitable tenants indicates a changing business practice for Mr. Noonan and an intent to abandon the nonconforming use as a two-family dwelling.” To start, the factual premise is disputed by Alouette, but even assuming it to be true that Mr. Noonan has rented both units to members of his family, it does not constitute an abandonment. The plaintiffs offer no legal authority in the Bylaw or otherwise for the proposition that rental of dwelling units to family members of the owner of the Property constitutes an abandonment of the lawful two-family use of the Property. Whether units in a residential building are occupied by owners or renters is irrelevant for zoning purposes, as it is the use, not the ownership or form of ownership that is relevant for zoning purposes. See CHR General, Inc. v. Newton, 387 Mass. 351 (1982). Likewise, whether the occupants of a residential unit are related to the owner of the building or are “members of the general public” does not change the use of the unit, and is not relevant to any zoning-related issues, including abandonment.

7. Alouette Was Not Required to Obtain a Variance Where the Proposed Addition Meets Dimensional Requirements of the Bylaw.

The plaintiffs argue that because the Property is nonconforming as to lot area (it contains 6,000 square feet in a district requiring 9,000 square feet), a variance rather than a special permit was required. They do not dispute the statement of Alouette that the proposed addition itself conforms to the setback and other dimensional requirements of the Bylaw. The plaintiffs cite Cox v. Bd. of Appeals of Carver, 42 Mass. App. Ct. 422 (1997) in support of the proposition that a variance is necessary because of the nonconforming lot size. The Cox case is distinguishable for an important reason. In Cox, the developer sought to expand a nonconforming use onto land that was not previously put to such use. The Cox court ruled a variance was required because this would have created a new nonconformity. 42 Mass. App. Ct. at 426. Accordingly, Cox is inapplicable to the case before the court.

Moreover, provisions of the Bylaw and of G. L. c. 40A, §6 explicitly authorize the granting of such a special permit, without the need for a variance, and considerable case law validates such statutory authority. The Bylaw, in Sections 1.5.3 and 1.5.4, authorizes the building commissioner and the Board of Appeals to grant permits for the alteration of single-family and two-family structures on undersized lots provided that the altered structure complies with other dimensional requirements. Section 6 of G. L. c. 40A grants the Board the same authority. There is much case law also making it clear that a local building official or a zoning board of appeals may authorize the alteration, or even the razing and reconstruction of an existing nonconforming single-family or two-family structure pursuant to the second “except” clause in G. L. c. 40A, §6, without a variance, provided that the altered or new structure does not introduce any new dimensional nonconformities. See e.g. Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008); Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005).

For the reasons stated above, it is

ORDERED and ADJUDGED that the plaintiffs’ motion for summary judgment is DENIED. It is further

ORDERED and ADJUDGED that summary judgment is ALLOWED IN PART for the defendants as follows:

a. The commencement of the use of the Property as a lawful nonconforming two-family dwelling as of March 20, 1939 is established as the law of the case;

b. The occupancy of the two dwelling units at the Property by Benjamin Adler in one unit and by Robert Adler and his family in the other unit may not serve as the basis for any claim of abandonment or non-use of the Property as a lawful nonconforming two-family dwelling;

c. The alleged statements of Peter Noonan that he planned to renovate the locus as a single-family dwelling and communicated his plan to abutters, but changed his plans when his daughter broke off her engagement, may not serve as a basis for a finding of abandonment of the lawful nonconforming use of the Property as a two-family dwelling;

d. Occupancy of the units at the Property by members of the family of the owner of the Property may not serve as a basis for a finding of abandonment or non-use of the lawful nonconforming use of the Property as a two-family dwelling; and

e. As a matter of law, no variance was required for the proposed alteration of the structure on the Property in a manner that complied with all setback, open space, lot coverage and building height requirements of the Bylaw. It is further

ORDERED and ADJUDGED that summary judgment for both parties is DENIED with respect to whether either of the units at the Property was vacant, not maintained or otherwise not used so as to support a finding that the use of the Property as a lawful nonconforming two-family dwelling was abandoned or lost by non-use for a period of two years or more. Trial will be required on these issues, provided that evidence will not be permitted on the issues for which summary judgment has been granted in this Order. Trial will also be required with respect to whether the Board otherwise exceeded its authority in finding that the proposed alteration was not substantially more detrimental to the neighborhood than the existing structure. It is further

ORDERED that the court will schedule a pretrial conference in this case.

So Ordered.