ELIAS KANJ and CEDAR REAL ESTATE CORP. vs. MATTHEW J. D'AGOSTINO, LAURA WALTA, VINCENZO PESCE, RICHARD A. LACROIX, and PHILIP CULTRERA, members of the METHUEN ZONING BOARD OF APPEALS, EUGENE P. WALSH, Methuen Building Inspector, and the CITY OF METHUEN.

This case is a dispute regarding whether Plaintiffs Elias Kanj ("Kanj") and Cedar Real Estate Corp. ("Cedar") (together, "Plaintiffs") should be permitted to use the property located at 281 Merrimack Street in Methuen, Massachusetts ("Locus") for used automobile sales as a pre-existing, nonconforming use. After they purchased Locus in February of 2015, Plaintiffs sought to apply for a municipal license authorizing that use, in connection with which they sought a zoning determination from Methuen Building Inspector Eugene P. Walsh ("Walsh") that such use was "grandfathered".

Walsh refused to issue such determination. In doing so, he did not address the question of grandfathering, but, instead, stated that Plaintiffs would require a special permit to authorize a nonconforming use and a dimensional variance in order to use Locus for used auto sales. Plaintiffs appealed that determination to the Methuen Zoning Board of Appeals (the "ZBA"). At the same time, Plaintiffs filed alternative requests for a special permit (the "Special Permit") pursuant to Section V-D of the Methuen Comprehensive Zoning Ordinance (the "Ordinance") (authorizing the use of Locus for the sale of motor vehicles) and a dimensional variance (the "Variance") pursuant to Sections VI-B-12 and VIII-B-4, 5, 5a, & 6 of the Ordinance (pertaining to requirements as to driving aisle width, buffer setbacks, buffer screening, and parking). In two decisions dated September 30, 2015 (the "ZBA Decisions"), the ZBA denied both the Special Permit and the Variance. Neither of these decisions addressed Plaintiffs' request for a zoning determination regarding grandfathering.

Plaintiffs timely appealed the ZBA Decisions, commencing this action by filing an unverified Complaint on October 23, 2015. In their Complaint, Plaintiffs (a) sought to appeal the ZBA Decisions pursuant to G.L. c. 40A, § 17 (Count I), and (b) requested a declaratory judgment pursuant to G.L. c. 231A that the ZBA Decisions were defective inasmuch as the ZBA failed to comply with the minimum protections set forth in G.L. c. 40A, § 6 for pre-existing, nonconforming structures and uses (Count II). Importantly, although Plaintiffs appealed the ZBA Decisions (which denied Plaintiffs' alternative requests for the Special Permit or Variance), their basis for that appeal is their claim that the ZBA improperly failed to find that used car sales was a grandfathered use of Locus. With respect to the Special Permit and Variance, Plaintiffs now take the position that such zoning relief—requested by them only in the alternative—was not required in the first place. [Note 1]

A case management conference was held on December 1, 2015. In January of 2016, the parties unsuccessfully attempted to mediate the case. The parties filed a Joint Request for Remand on April 8, 2016, but the ZBA, after two executive sessions, decided not to reopen the case. On July 8, 2016, Plaintiffs filed an Amended Complaint, which added the City of Methuen (the "City") as a Defendant, and introduced two new causes of action requesting a determination, pursuant to G.L. c. 240, § 14A, as to the applicability of Section IX-A of the Ordinance (pertaining to pre-existing, nonconforming uses) (Count III), and alleging a violation of G.L. c. 231, § 6F (frivolous claim) (Count IV). Defendants the ZBA, the City, and Walsh (together, "Defendants") filed an Answer on July 18, 2016.

On October 4, 2016, Plaintiffs filed their Motion for Summary Judgment, together with a supporting memorandum, a statement of material facts, and affidavits of Brett Perry ("Perry") (a title researcher), George Dufour ("Dufour") (president of Fram Auto Corp.), Kanj, and Stephanie A. Kiefer ("Kiefer") (Plaintiffs' counsel). Annexed to Kiefer's affidavit was a partial transcript of the deposition of William Buckley ("Buckley") (Methuen Community Development Director). Defendants filed their opposition to this motion on October 31, 2016, together with a statement of additional material facts, and an appendix containing transcripts of the depositions of Matthew J. D'Agostino ("D'Agostino") (chair of the ZBA) and Walsh. A hearing was held on the motion on November 2, 2016, at which time Plaintiffs filed a supplemental affidavit of Kiefer. After the hearing, this court requested copies of the full deposition transcripts for D'Agostino, Walsh, and Buckley, which were filed on November 9, 2016. At that time the matter was taken under advisement.

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

1. Locus is composed of four contiguous lots (three registered lots and one recorded lot [Note 2] ) that, together, have an area of 0.31 acres (13,566 square feet). It has frontage of 129.54 feet on Merrimack Street, and also abuts Wallace Street on the north and Walton Avenue on the south. Locus meets all dimensional requirements of the Ordinance. There is a small building located on Locus (the "Building"), which was built prior to the institution of zoning regulations in Methuen. [Note 3]

2. Kanj is the President of Cedar, which purchased Locus from John Fram ("Fram") pursuant to a February 6, 2015 deed, which was recorded in the Registry at Book 14122, Page 285 (for the recorded parcel) and Document 111374 on Transfer Certificate of Title 17254 (for the registered parcels). [Note 4]

3. In 1962, Fram conveyed both the registered portion and the recorded portion of Locus to Fram Realty Co. of Methuen, Inc. ("Fram Realty"). In or about May 2002, Fram Realty conveyed both portions of Locus back to Fram.

4. Fram Realty owns a number of parcels adjacent to Locus (the "Fram Properties"). The Fram Properties are located to the rear of Locus on Walton Avenue and across Walton Avenue, with frontage on Merrimack Street, Walton Avenue and Taft Avenue. Dufour is the President of Fram Realty.

5. The undisputed evidence in the summary judgment record indicates that the Fram Properties and Locus have been in commercial use for the sale of used automobiles ("Class II" use) and/or auto salvage ("Class III" use) since at least the mid-1950s—possibly as early as 1944. During that time period, a separate (related) entity, Fram Auto Corp. ("Fram Auto") (whose President is also Dufour), leased all of the parcels (including Locus) and ran the auto business. [Note 5] The office building for the Fram Auto business conducted on all of the lots was located at the Fram Realty property located at 5 Walton Avenue.

6. From the mid-1950s to the present, the City, through its Licensing Board (the "Licensing Board') has issued annual Class II licenses (used car sales) for the Fram Properties and Locus. [Note 6] These Class II licenses are applicable to the lots which front on Merrimack Street, including 5 Walton Avenue and Locus. [Note 7] [Note 8] Evidence in the summary judgment record as to these licenses includes a memorandum dated March 12, 1979 from a previous Methuen Building Inspector stating that Class II licenses had been issued to Fram Auto on Merrimack Street every year from 1944-1979. [Note 9] For the years 1980 forward, the summary judgment record contains copies of Fram Auto's renewed Class II license for every calendar year from 1980 to 2015 except for 1986, 1992, 2000, 2002, 2005, and 2012. [Note 10] This evidence is supplemented by the testimony of Dufour, who stated that Locus and the Fram Properties were under valid Class II licenses for each of the years for which copies of the actual license are missing. [Note 11]

7. Until 1979, the Class II license for the Fram Properties permitted an unlimited number of cars on the Fram Properties. From 1979 to 2001, the number of cars was limited to 500. From 2001 forward, the number of cars permitted fluctuated from 100 to 150. For the year 2015, the number of cars allowed was 150 for all Fram Properties.

8. The City first enacted zoning in 1942 by adopting the Zoning Bylaws of the Town of Methuen (the "Bylaw"). [Note 12] During the years the Bylaw was in effect, Locus was located in the General Business zoning district. When the Bylaw was enacted in 1942, car sales and storage were allowed as of right in this district. On February 8, 1979, the Ordinance was adopted, and thus superseded the Bylaw. As of its effective date, the Ordinance reclassified the General Business zoning district as the Neighborhood Business zoning district (defined in the Ordinance as the "BN" district). Under the current version of the Ordinance (effective as of August 9, 1989), Locus is located in the BN district, which requires a special permit for auto sales and storage. See Ordinance Section V-D.

9. In January of 2015, Fram Auto applied for and received a Class II license for Locus. At that time, Fram Auto was using Locus for used auto sales, and approximately fifty cars were located on Locus. [Note 13]

10. At the time of the February 6, 2015 sale of Locus from Fram to Cedar, Fram was still storing approximately fifty cars on Locus, which had to be relocated to the other Fram Properties in connection with Cedar taking possession of Locus. Also, because of multiple heavy snow storms in February of that year, it was also necessary to engage in snow removal in order to remove Fram Auto's inventory of cars from Locus. Kanj helped Fram both with the removal of snow and with the relocation of Fram Auto's inventory. In connection therewith, on February 20, 2015, Kanj paid $450.00 to J&S Towing to tow ten cars from Locus and to remove the remaining snow.

11. On April 29, 2015, Plaintiffs applied to the Licensing Board for a renewal of Fram Auto's Class II license for Locus for the purpose of operating a new, standalone auto sales business (operated by Pine Hill Motors, LLC). At that time, Fram Auto's Class II license (issued in January 2015 for the calendar year 2015) was still in effect for Locus in the name of Fram Auto. In connection with Plaintiffs' application, Plaintiffs requested Walsh to issue a zoning determination regarding whether Class II auto sales was an authorized use of Locus. [Note 14]

12. Walsh responded to this request for a zoning determination in two letters dated July 13, 2015 (the "Walsh Letters"), in which he "refus[ed] a permit to use of [sic: or] build" on Locus for purposes of used car sales because "a Special Permit is required under Section V-D in a BN District for the sale of Motor Vehicles." [Note 15] Further, Walsh concluded, "a Variance is required under Sections VI-B-12, & VIII-B-4,5,5a,6 in a BN District for Aisle Width, Buffer Setbacks, Buffer Screen & Parking to [sic: too] close to Buildings & Lot Lines." [Note 16]

13. Plaintiffs appealed the Walsh Letters to the ZBA, challenging Walsh's refusal to issue a zoning determination that Class II auto sales was an allowed use of Locus. [Note 17] In the alternative, Plaintiffs applied for the Special Permit (to use Locus for auto sales) and Variance (relating to aisle width, buffer setbacks, buffer screen, and parking distances to buildings and lot lines), which Walsh had claimed in the Walsh Letters were required.

14. The ZBA held a public hearing on Plaintiffs' appeal on August 26, 2015. That hearing was continued to September 30, 2015, on which date the ZBA issued the ZBA Decisions. In them, the ZBA did not address in any way Plaintiffs' contention that Class II auto sales was a pre-existing, nonconforming use of Locus, nor specify that the ZBA had concluded that such use had been abandoned. Rather, the ZBA appears only to have ruled upon Plaintiffs' alternative requests for the Special Permit and Variance, and denied both such requests. The ZBA Decisions were filed with the Methuen City Clerk on October 9, 2015.

15. With respect to Plaintiffs' request for the Special Permit, the ZBA stated, among other things, as follows:

2. The Board found that the requested use would create an excess of used car businesses in this neighborhood as this would be the fourth in a three block radius.

3. Although the requested use will not subject the neighborhood to health, fire safety hazards, nor will overload the water, drainage or sewer system and the Special Permit Checklist been "signed-off" by all the City departments, the Board determined that another used car lot in this neighborhood would not be beneficial in meeting the needs of the public.

4. The site is located in [the BN district] along the Route 110 Corridor and is a mix of residential and commercial uses. In the past several years the area has been undergoing revitalization, including strip malls, office condominiums and over 55 housing [units] which have greatly improved the area. The Board has recognized that the character of the neighborhood is moving in a new direction and believes that this is what will be meet the needs of the public [emphases added].

With respect to Plaintiffs' request for the Variance, the ZBA made similar (almost verbatim) findings:

2. A literal enforcement of the [Ordinance] would not be a substantial hardship to the owner that would deny them reasonable use of their property. The Board acknowledged that the site was previously used some time ago for used car sales but recognized that the requested use would create an excess of used car businesses in this neighborhood as this would be the fourth in a three block radius.

3. The Board found [that] the neighborhood is turning in a new direction and that there are many other more desirable and beneficial uses for that location. Additionally they found that desirable relief may not be granted without substantial detriment to the public. The requested use would not be an enrichment to the property and would not enhance and beautify the subject site and the surrounding neighborhood [emphases added].

As noted, the ZBA, in the ZBA Decisions, did not make any finding regarding whether the use of Locus for used car sales was a pre-existing, nonconforming use, nor, if it was, whether that use had been abandoned.

16. Plaintiffs timely appealed the ZBA Decisions to the Land Court on October 23, 2015. After going to mediation, both parties agreed to a remand hearing. However, following two executive sessions held by the ZBA on April 27, 2016 and May 25, 2016, the ZBA reneged on this agreement and refused to hold a remand hearing, reasoning that the ZBA, in executive session, had determined that it should not reopen Plaintiffs' appeal.

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Plaintiffs now seek summary judgment on Count I (judicial review under G.L. c. 40A, § 17), [Note 18] Count II (declaratory judgment under G.L. c. 231A), [Note 19] and Count III (determination of applicability of Section IX-A of the Ordinance pursuant to G.L. c. 240, § 14A) [Note 20] of their Amended Complaint. [Note 21] While each of these counts are pleaded under different statutes, each effectively seeks the same relief: a ruling that Plaintiffs are entitled to use Locus for Class II used car sales because such use is a pre-existing, nonconforming use that has not been abandoned. As a corollary to this claim, they argue that the use of Locus for Class II used car sales also has not been altered, changed, or extended to such an extent as to require a special permit and/or variance under G.L. c. 40A, § 6. Plaintiffs further argue that, even though no alteration, change, or extension of the existing use of Locus is proposed, the use of Locus for Class II used auto sales would "not be substantially more detrimental than the existing nonconforming use to the neighborhood." Defendants argue that the ZBA Decisions were valid both because, they claim, Class II used auto sales is not a pre-existing, nonconforming use of Locus (having, they claim, been abandoned), and that Plaintiffs' use of Locus for that purpose would constitute a detriment to the neighborhood. [Note 22] I shall address each of these issues in turn.

A. Pre-existing, Nonconforming Use

Both G.L. c. 40A, § 6, on the statewide level, and the Ordinance, locally, provide certain protections for pre-existing, nonconforming uses. G.L. c. 40A, § 6 effectively provides the "floor" for protection of such uses, with local bylaws left to set forth standards for application of those protections, and, if deemed appropriate by the local authority, to provide additional protections. Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406 , 411 (1962) ("The statutory provisions in respect of nonconforming uses . . . prescribe[ ] the minimum tolerance which must be given to nonconforming uses.").

With respect to the applicability of zoning requirements, G.L. c. 40A, § 6 states as follows:

A zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun . . . before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use . . . .

Section IX-A of the Ordinance contains nearly identical language, as follows:

This zoning Ordinance shall not apply to structures or uses in existence or lawfully begun . . . before the first publication of notice of the public hearing required by G.L. c. 40A, § 5 at which this zoning Ordinance, or any relevant part thereof, was adopted. Such prior, lawfully existing nonconforming uses and structures may continue, provided that no modification of the use or structure is accomplished, unless authorized hereunder.

With respect to changes, alterations, or extensions of a pre-existing, nonconforming use, G.L. c. 40A, § 6 states as follows:

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Section IX-B of the Ordinance contains similar language:

The Board of Appeals may award a special permit to change a nonconforming use in accordance with this section only if it determines that such change or extension shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The following types of changes to nonconforming uses may be considered by the Board of Appeals:

1. Change from one nonconforming use to another, less detrimental, nonconforming use [emphasis added].

While this language is similar to that set forth in G.L. c. 40A, § 6, subpoint 1 of Ordinance Section IX-B appears to actually offer less protection to pre-existing, nonconforming uses than the minimum required by G.L. c. 40A, § 6. To wit, whereas the state statute requires only that a change to such uses "not be substantially more detrimental", the local provision appears to require such a change to result in a use that is "less detrimental". Thus, to the extent this enhanced requirement affords fewer protections to pre-existing, nonconforming uses than G.L. c. 40A, § 6, it is invalid on its face. Chilson, 344 Mass. at 411.

The documents in the summary judgment record establish that Locus was used for used car sales at least since 1954 (and as early as 1944) through and including 1979. [Note 23]

The first documented Class II license for Locus was for the year 1966, and it indicated that the owner of Locus had held such a license since at least 1954. Prior to 1979, used auto sales was a use that was allowed as of right by the Bylaw. The Bylaw was superseded by the Ordinance in 1979, after which time a special permit for auto sales use was required. At that time, therefore, the use of Locus for the sale of used cars became a pre-existing, nonconforming use.

Based upon the evidence in the summary judgment record, I FIND that Locus was used consistently for the sale of used cars (Class II use) prior to the February 8, 1979 adoption of the Ordinance, thereby establishing such use as a pre-existing, nonconforming use of Locus as of that date.

B. Abandonment

Having found that the use of Locus for the sale of used cars was a pre-existing, nonconforming use as of the February 8, 1979 adoption of the Ordinance, I now turn to the question of whether that use remained continuous from 1979 (when the use became nonconforming) to 2015 (when Fram sold Locus to Cedar), or whether that use (as Defendants claim) was abandoned.

As with pre-existing, nonconforming uses generally, there are both statewide and local provisions that govern whether such a use should be deemed abandoned for zoning purposes. Pursuant to G.L. c. 40A, § 6, ¶ 3, "[a] zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." This Section provides minimum protections for nonconforming uses and structures that local bylaws must maintain. It thus allows, but does not require, local zoning bylaws to extinguish protections for abandoned uses or structures after two years.

Section IX-F of the Ordinance similarly states that "[a] nonconforming use or structure that has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning Ordinance." Section II-A of the Ordinance defines "abandonment" as: "[t]he cessation of an existing use of a structure or lot for twenty-four consecutive months, or the replacement of a non-conforming use or structure by a conforming use or structure."

In support of their claim that the use of Locus for used car sales was never abandoned, Plaintiffs cite the evidence of Class II licensure for Locus (to show that such use was legally authorized over the years, including 2015), photographs annexed to Kiefer and Perry's affidavits (to show the presence of cars on Locus over the years), and Dufour's affidavit testimony regarding Fram's continuous use of Locus prior to the sale to Cedar.

Defendants argue that the use of Locus for used car sales was abandoned by Fram more than two years prior to the sale to Cedar. [Note 24] In support of this claim, Defendants cite Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 171-172 (1996), in which the Appeals Court articulated the following two-part test for assessing whether a use has been abandoned:

[t]o constitute an abandonment [other than where defined by ordinance], the discontinuance of a nonconforming use [structure or lot] 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.

Id. at 172 (quotations omitted) (brackets in original). "[M]ere nonuse or sale of property does not, by itself, constitute an abandonment." Id. (quotation omitted). [Note 25]

The facts in the summary judgment record, themselves, do not appear to be in dispute. The interpretation of these facts, however, is in dispute. The record discloses that Fram and his family have used Locus for the sale of used cars under a Class II license from at least the 1950s until February 2015, when Fram sold Locus to Cedar. Those Class II licenses cover the relevant time period from 1979 (when the Ordinance was adopted and used car sales at Locus became a pre-existing, nonconforming use) through 2015 (when Locus was sold to Cedar). [Note 26] Most recently, Fram received a Class II license for Locus in January of 2015 for the calendar year 2015. That license runs with the land and is not based on the ownership of the property. Derby Ref. Co. v. City of Chelsea, 407 Mass. 703 , 708 (1990) ("[T]he right to continue a nonconforming use is not confined to the existing user, but runs with the land.").

Defendants claim that these licenses are inconclusive because, they note, Fram's Class II license applications in recent years are ambiguous as to whether Locus is among the properties covered by these licenses--in particular because portions of applications have been left blank. The applications consistently list the main address for the license at 5A Walton Avenue despite the Class II license covering all of the Fram Properties. Defendants cite the "complete description of all the premises" portion of the applications, which was left blank on multiple applications, whereas, on other applications, this information was provided via map/plan or written description. [Note 27] However, the evidentiary value of these minor inconsistencies in the property description in the license applications is clearly outweighed by the simple fact of the frequency of the applications themselves, which do not demonstrate any intent to exclude Locus, nor suggest an implication of abandonment. [Note 28] Dial Away, 41 Mass. App. Ct. at 172.

Also undermining Defendants' claim of abandonment are the photographs attached to Kiefer and Perry's affidavits, which indicate that Locus was being used for Class II auto sales at various periods between 1979 and 2015. While a few of these photographs are of such low quality that it is unclear how many cars are on Locus, several others are of sufficient quality to show numerous cars parked on Locus during the years 1995, 2000, 2007, 2008, 2010, 2013, and 2014. Furthermore, at the time of the sale to Plaintiffs, Fram had to move approximately fifty cars from Locus to the other Fram Properties in order to deliver possession of Locus. The significant number of cars that had to be removed from Locus at the time of its sale indicates that the use of Locus for used car sales had not been abandoned. [Note 29]

Defendants next note Walsh's testimony that he, in his capacity as the Methuen Building Inspector, often drove past Locus and did not see much activity there. In particular, he claimed that Fram Auto did not use the "usual" advertising for a used car lot (using "for sale" signs, balloons, or streamers, etc.). [Note 30] D'Agostino, chair of the ZBA, also stated that he did not see much activity on the site. [Note 31] However, Dufour testified, with specificity, that his used auto sale business at Locus continued up to the time of the sale of Locus to Cedar. Dufour further testified that, because his company had been in business for so many years, it rarely, if ever, needed to resort to using such "usual" types of advertising that Walsh had stated were absent from Locus.

Defendants claim that the foregoing evidence establishes abandonment, or, at least, raises an issue of disputed fact on that point. I disagree on both points. The uncontested documentary and testamentary evidence proffered by Plaintiffs demonstrates both a lack of intent to abandon and an affirmative, continued use of Locus. Moreover, I disagree that Defendants have identified a meaningful dispute of fact on this point because the testimony of Walsh and D'Agostino does not actually contradict that of Dufour (or Plaintiffs' other evidence of use). At best, the testimony of Walsh and D'Agostino establishes that "[t]he property looked like there was no [used car sales] activity being orchestrated there." In light of more complete information, however, it appears that Walsh and D'Agostino's impression was speculative and unfounded. [Note 32] In any event, the limited impression of temporary non-use--even if accepted as true--does not establish any intent to abandon the use of Locus for auto sales, nor suggest an implication of abandonment. Dial Away, 41 Mass. App. Ct. at 172.

Based on the foregoing discussion, I FIND that Fram's Class II auto sales use of Locus was never abandoned for any two-year period between February 8, 1979 (when the Ordinance was adopted) and February 6, 2015 (when Cedar purchased Locus).

C. Change, Alteration, or Extension of Pre-existing, Nonconforming Uses

Having found that used car sales is a pre-existing, nonconforming use on Locus that has not been abandoned, I now must determine whether Plaintiffs' present proposal to continue that use will constitute a "change, extension or alteration", thus triggering the requirement for a special permit under G.L. c. 40A, § 6 and Ordinance Section IX-B. [Note 33]

Case law has long rejected the notion that any fluctuation in a nonconforming use, no matter how minor, triggers G.L. c. 40A, § 6. Indeed, the jurisprudence in this area "unequivocally rejects the concept that nonconforming uses or structures must either fade away or remain static." Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 484 (2012) (quotation omitted). Thus, some "improved and more efficient means of pursuing a nonconforming use are permissible if they are ordinarily and reasonably adapted to the original use and do not constitute a change in the original nature and purpose of the undertaking." Berliner v. Feldman, 363 Mass. 767 , 775 (1973).

Naturally, given the fact-driven nature of this inquiry, a great body of case law accumulated for many years until the Supreme Judicial Court saw fit to distill the courts' broad treatment of this subject into a unified, three-prong test for determining whether G.L. c. 40A, § 6 is triggered. Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 650-659 (1973). The so-called Powers test asks as follows:

(1) [w]hether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect . . . (2) [w]hether there is a difference in the quality or character, as well as the degree, of use . . . [and] (3) [w]hether the current use is different in kind in its effect on the neighborhood.

Id. at 653 (citations and quotations omitted). If the answers to these three questions are, respectively, yes, no, and no, then the use will not be deemed a "change, extension or alteration" of the existing use, which may thus go forward without need for a special permit under G.L. c. 40A, § 6. [Note 34] Otherwise, the use may not proceed unless the owner obtains a special permit containing a so-called "Section 6 finding" that such use "shall not be substantially more detrimental than the existing nonconforming use to the neighborhood." G.L. c. 40A, § 6; see also Ordinance § IX-B; n. 24, supra.

The first part of the Powers test ("[w]hether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect") appears easily satisfied here. The summary judgment record shows that used auto sales has been the primary use of Locus since the 1950s pursuant to a Class II license. Plaintiffs intend to continue that same use. The only notable difference here (and one that Defendants claim is determinative) is that Plaintiffs intend to use Locus for a new, standalone car sales business operating exclusively on Locus (rather than as a component of a much larger auto sales operation), with the Building to be used to conduct administrative business. As noted, under Fram, the administrative office for the Fram Auto business was located on another adjacent property, whereas Locus was used for auto display and storage. Defendants argue that this change fundamentally alters the nature of the business operation, even though the main use of Locus remains the sale of used vehicles.

I disagree. The central use (the sale of used cars) remains the same. The mere fact that sales contracts are drawn up (and other administrative business is conducted in support of auto sales) on site effects no difference to the "nature and purpose" of the use itself, namely the operation of a used car business. The "nature and purpose" of the use remains the same, so the first Powers test question is satisfied.

The second part of the Powers test ("[w]hether there is a difference in the quality or character, as well as the degree, of use") also appears to be satisfied here, since Plaintiffs propose merely to continue to engage in the sale of used cars pursuant to the same Class II license that was in effect at the time of the sale of Locus to Cedar. Here, Defendants attempt to seize upon minor details to try to create the impression that the quality or character of use would change under Plaintiffs, but their attempts to do so fail to see the forest for the trees. [Note 35] Minor details regarding lot configuration and the exact location where ink will be put to paper aside, the use would fundamentally be the same in quality and character: used auto sales. Even if Defendants were correct that Plaintiffs' proposal will result in an increase in the volume of business, this alone would be insufficient to establish a change in the quality or character of the proposed use. Bd. of Selectmen of Blackstone v. Tellestone, 4 Mass. App. Ct. 311 , 315 (1976) ("The character of a use does not change solely by reason of an increase in its volume . . . ."). The second Powers test question is thus also satisfied.

As to the degree of use, this inquiry effectively overlaps with the third Powers test (i.e., "[w]hether the current use is different in kind in its effect on the neighborhood"). See Powers, 363 Mass. at 653. It too appears to be met here because the used car sales business proposed by Plaintiffs, as discussed above, will be the same as the prior use in all meaningful ways. Moreover, the evidence in the record indicates that the use of Locus may actually be less under Plaintiffs than under Fram Auto because there will be fewer cars being sold on Locus (and no auto parts salvage business). [Note 36]

Defendants' "slippery slope" argument here—i.e., that allowing the Fram Properties to be parceled off and new, standalone businesses to open on the lots would generate more customers—amounts to nothing more than fear-mongering and speculation. Even if that were being proposed, the simple logistics of operating a business undermine Defendants' hypothetical. [Note 37] Whereas Locus was previously a component of a much larger operation, it will now be a smaller, standalone enterprise, and the greater amount of space dedicated to "support" of the used car sales business can be expected to correspond to a downturn in the scale of the sales operations. Even if Defendants' theory were correct, however, Powers makes clear that a mere upturn in business does not rise to the level of a change in kind to the use. [Note 38]

Regarding the appearance of Locus, the Building (which, as noted, has already been renovated under a valid building permit and will be used for administrative purposes) has existed since the 1950s. The renovations to the Building will not only make it more presentable (inside and out), it will not increase the usage of Locus, as the same people who are looking at cars there will use the office if (and only if) they decide to buy the car. It will not be used for auto sales from other lots. Likewise, the creation of a more orderly parking layout will make the lot in general more attractive to the neighborhood, presenting an orderly business operation, rather than the appearance of a storage lot. [Note 39] These sorts of improvements and modernizations are not disallowed. Berliner, 363 Mass. at 775.

In sum, it does not appear that Plaintiffs' proposed use of Locus would be different in kind in its effect on the neighborhood as compared with past use. [Note 40] Thus, the third Powers test question is also satisfied.

Based upon the foregoing discussion, I FIND that the use of Locus proposed by Plaintiffs would (1) reflect the nature and purpose of the use of Locus that was prevailing when the Ordinance took effect, (2) would not effect any difference in the quality, character, or degree of the use of Locus, and (3) would not be different in kind in its effect on the neighborhood as compared with the prior use of Locus. As such, I FIND that the use of Locus for Class II auto sales retains its status as a pre-existing, nonconforming use that may be continued without the need for a special permit under G.L. c. 40A, § 6.

This ruling renders moot the question of whether Plaintiffs' continued Class II use of Locus would not be substantially more detrimental to the surrounding neighborhood, because a Section 6 finding on that question is not required. Indeed, this question is not properly before this court, because Plaintiffs do not appear to have ever actually requested a Section 6 finding, which would need to be ruled upon by the ZBA in the first instance. Goldhirsh v. McNear, 32 Mass. App. Ct. 455 , 461 (1992). However, because the "substantial detriment" question features prominently in both sides' briefs, I will address it very briefly.

Even if I had found that G.L. c. 40A, § 6 had been triggered, it would appear that Plaintiffs' use of Locus for Class II used auto sales would neither be more detrimental nor substantially more detrimental to the surrounding neighborhood. Indeed, as discussed above, the evidence suggests it would be "less detrimental", as (improperly) required by the Ordinance. The Court bases this conclusion on the within findings of fact, as well as the ZBA's finding that the "requested use will not subject the neighborhood to health, fire safety hazards, nor will overload the water, drainage or sewer system and the Special Permit Checklist been 'signed-off' by all the City departments. Thus, while I need not (and do not) formally rule as to whether Plaintiffs were entitled to a favorable Section 6 finding, it presently appears to this court that they would be so entitled.

D. Plaintiffs' G.L c. 231, § 6F Claim

Having ruled on the parties' summary judgment claims, I will now take the opportunity to address Plaintiffs' G.L c. 231, § 6F claim, which seeks damages for assertion of a frivolous claim following a determination on the merits of such claim. [Note 41] As noted, Plaintiffs' motion did not address this claim because, they note, "the determination under Count IV must await a decision by the [c]ourt in the underlying counts."

On its face, G.L c. 231, § 6F does not provide any basis for an independent claim that can be pled in a party's complaint, as Plaintiffs have purported to do here. Rather, "a [G.L. c. 231, § 6F] motion is not a distinct cause of action . . . but instead is a sui generis and collateral proceeding, separate from but not entirely independent of the judgment." Ben v. Schultz, 47 Mass. App. Ct. 808 , 814 (1999). Such a proceeding "may not commence until there has been a finding, verdict, decision, award, order or judgment on the disputed claim or defense, presumably in favor of the party against whom it was made." Id. at 813 (quotation omitted).

Based on the foregoing case law, it is clear that Plaintiffs' Count IV is both procedurally improper—in that it seeks to assert an independent cause of action under G.L c. 231, § 6F—and unripe—since it was asserted prior to the issuance of a final Judgment on the merits of this case. It must thus be dismissed at this juncture.

Even if it had been properly raised, Plaintiffs' request for damages under G.L c. 231, § 6F appears to be without merit. Here, Plaintiffs claim that Defendants' defenses and arguments raised in this action were wholly insubstantial, frivolous, and/or not advanced in good faith. "Good faith implies an absence of malice, an absence of design to defraud or to seek an unconscionable advantage." Hahn v. Planning Bd. of Stoughton, 403 Mass. 332 , 337 (1988). Reaching a determination under G.L c. 231, § 6F that a claim was advanced in bad faith requires the court to make findings as to "specific facts and reasons" supporting an award of costs. Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. 282 , 291 (1996); see also G.L. c. 40A, § 17 ("Costs shall not be allowed against the board or special permit granting authority unless it shall appear to the court that the board or special permit granting authority in making the decision appealed from acted with gross negligence, in bad faith or with malice.").

In this case, Defendants' primary claims were that there was insufficient evidence that Class II use of Locus was a pre-existing, nonconforming use prior to 1979, that such use had been abandoned, and that, even if not, the proposal offered by Plaintiffs would inure to the detriment of the neighborhood. In making these claims, they relied on the testimony of D'Agostino and Walsh, who made factual allegations regarding their own observations of Locus and personal opinions. There is no indication that these allegations were made falsely or in bad faith, and thus the court feels that Defendants' claims—made in reliance of such allegations—were likewise advanced in good faith. Regarding the conduct of Walsh and individual ZBA members, which resulted in the denial of Plaintiffs' applications for the Special Permit and Variance, this conduct occurred prior to the current litigation, and thus cannot be considered as it relates to Plaintiffs' § 6F claim. See Lewis v. Emerson, 391 Mass. 517 , 526 (1984) ("[G.L.] c. 231, § 6F . . . does not focus on the conduct of the defendant prior to trial; rather, it focuses on the conduct of the litigation by the defendant.").

In sum, Plaintiffs' claim for relief under G.L c. 231, § 6F must be dismissed as procedurally improper and unripe. Even if it were properly before me, however, I would be inclined to find and rule that Defendants' claims were not wholly insubstantial, frivolous, or not advanced in good faith.

E. Conclusion

Based upon the foregoing discussion, I hereby ALLOW Plaintiffs' motion for summary judgment to the extent stated herein. The ZBA Decisions are thus hereby VACATED and the case is REMANDED to the ZBA with instructions for the ZBA to issue a ruling, consistent with this Decision, nullifying the determinations in the Walsh Letters and directing the Methuen Building Inspector to issue a zoning determination that Plaintiffs' continued use of Locus for Class II used auto sales, as proposed in Plaintiffs' application to the Licensing Board, is a pre-existing, nonconforming use that may be continued by Plaintiffs without need for zoning relief under G.L. c. 40A, § 6 or the Ordinance pertaining to a change, alteration, or extension of a pre-existing, nonconforming use. [Note 42] [Note 43]

Plaintiffs' Count IV is DISMISSED, without prejudice, because it is both procedurally improper and unripe.

Judgment to issue accordingly.