MISC 15-000446

May 31, 2017



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"). [Note 1] 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 2]

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.

Of even date hereof, the court has issued the Decision (defined, supra, note 1). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:

ORDERED and ADJUDGED 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, and;

ORDERED and ADJUDGED 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), and;

ORDERED and ADJUDGED 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, and;

ORDERED and ADJUDGED 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, and;

ORDERED and ADJUDGED that Plaintiffs' motion for summary judgment is ALLOWED to the extent stated in the Decision; and,

ORDERED and ADJUDGED that the ZBA Decisions are VACATED and the case is REMANDED to the ZBA with instructions for the ZBA to issue a ruling, consistent with the 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 Methuen 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; and,

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



[Note 1] In the Decision issued of even date hereof (the "Decision"), Walsh's determination, which was issued in the form of two letters dated July 13, 2015, is defined as the "Walsh Letters". In the Walsh Letters, Walsh "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." 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 2] As discussed more fully in the Decision, the crux of this dispute is not the refusal by the ZBA to grant the Special Permit or Variance, but rather the ZBA's refusal to direct Walsh to issue the requested zoning determination that the use of Locus for used automobile sales was a pre-existing, nonconforming use of Locus. Initially, Plaintiffs were not actually seeking any affirmative zoning relief from Walsh at all; all they were seeking was a zoning determination by Walsh in support of their renewal application for the necessary municipal license for such use. When Walsh refused to issue that zoning determination, Plaintiffs appealed that refusal to the ZBA. In conjunction with that appeal, Plaintiffs also filed—in the alternative— requests for the issuance of the Special Permit and Variance, which Walsh had claimed were necessary. In other words, Walsh was taking the position that Plaintiffs should be treated either as a landowner who had abandoned a "grandfathered" use, or as one who was proposing to engage in a nonconforming use in the first instance. Unhelpfully, neither a copy of the original request to Walsh nor that of the appeal to the ZBA was included in the summary judgment record by Plaintiffs, so the court has been forced to piece together the actual substance of their alleged grievance. Equally unhelpfully, the ZBA Decisions do not address the actual substance of Plaintiffs' appeal (i.e., Walsh's refusal to issue the requested zoning determination), but instead only address Plaintiffs' alternative requests for the Special Permit and Variance.