Thomas Ruble Building Inspector and Zoning Enforcement Officer of the TOWN OF ROCKLAND and TOWN OF ROCKLAND v. KEVIN R. McGEE Individually and as Trustee of the UNION STREET REALTY TRUST.

Kevin R. McGee owns the property at 511 Union Street, Rockland, Massachusetts (Property), as trustee of the Union Street Realty Trust (Trust). Since long before he owned it, the Property was used for vehicle repairs, a lawful nonconforming use that continues to this day. In 1997, McGee obtained a special permit to sell used cars at the Property, but that special permit lapsed and McGee's application for a new special permit was denied in 2012. The Town of Rockland's (Town) and Town Building Inspector and Zoning Enforcement Officer Thomas Ruble's (Ruble) contentious interactions with McGee have continued in this action, in which the Town seeks to control and limit McGee's lawful nonconforming repair use of the Property. After trial, I find that McGee has not expanded his lawful nonconforming use either in degree or kind, that the conditions of McGee's lapsed special permit to sell used cars do not apply to his lawful nonconforming repair use, and that the Town has no authority to limit his current use. I also find that the Town's initial allegation that McGee's lawful nonconforming use had lapsed, while insubstantial and wrong, was not advanced in bad faith.

Procedural History

The Plaintiffs' Verified Complaint was filed on June 19, 2015. The Answer of Kevin R. McGee Individually and as Trustee of The Union Street Realty Trust was filed on July 14, 2017. The Defendants' Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(9) and Motion to Dismiss Based on Fraud Upon the Court was filed on October 5, 2015. The Plaintiffs' Oppositions to Defendants' Motion to Dismiss was filed on October 20, 2015. The motions to dismiss were heard on October 20, 2015, and denied without prejudice. The action was stayed between October 20, 2015 and February 12, 2016.

The Defendants' Motion for Summary Judgment, Defendant's Memorandum in Support of his Motion for Summary Judgment, Defendant's Statement of Undisputed Facts in Support of his Motion for Summary Judgment, and Appendix to Statement of Facts were filed on May 16, 2016. The Plaintiffs' Motion for Leave to Amend Complaint was filed on June 23, 2016. The Plaintiffs' Opposition to the Defendants' Motion for Summary Judgment, Plaintiff's Response to Defendants' Statement of Undisputed Facts Offered in Support of His Motion for Summary Judgement and Plaintiffs' Statement of Additional Material Facts in Support of their Opposition to Defendants' Motion for Summary Judgment, Plaintiffs' Additional Exhibits/Affidavits in Opposition to Defendant's Motion for Summary Judgment, Affidavit of Thomas Ruble, Affidavit of Alan Chiocca, Affidavit of Joseph E. Bombardier, and Affidavit of Robert W. Galvin were filed on July 8, 2016. The Defendant's Opposition to Plaintiffs Motion to Amend their Verified Complaint was filed on July 26, 2017. The Combined Statement of Facts in Support of Defendant's Motion for Summary Judgment was filed on July 27, 2017. At a hearing on July 27, 2016, the Plaintiffs' Motion for Leave to Amend the Complaint was allowed, the Amended Complaint was deemed filed, and the Defendants' Motion for Summary Judgment was denied. The Defendants' Answer to First Amended Complaint and Counterclaims was filed on November 4, 2016. The Defendants' Motion for Costs and fees Pursuant to Mass. Gen. Law. Ch. 231, Sec. 6F was filed on November 16, 2016. The Defendants' motion for costs and fees was denied without prejudice on November 17, 2016. The Defendants' Amended Answer to the Plaintiffs' Amended Complaint was filed on January 25, 2017.

The parties' Joint Pre-Trial Memorandum was filed on July 31, 2017. The pre-trial conference was held on August 2, 2017. The court took a view on October 25, 2017. A trial was held on October 26 and 27, 2017. Exhibits 1-21 were marked, and I heard testimony from Edward F. Kimball, Allan Chiocca, Thomas Ruble, Tezel Cagdas, and Kevin R. McGee. The transcript of the trial was filed on December 7, 2017. The Plaintiffs' Post-Trial Memorandum and Defendant Kevin McGee's Post-Trial Brief were filed on January 12, 2018. The court heard closing arguments on January 26, 2018, and took the case under advisement. The transcript of closing arguments was filed on February 12, 2018. This Decision follows.

Facts

Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. McGee as Trustee of the Trust is the owner of the property located at 511 Union Street, Rockland, Massachusetts (the Property), by a deed dated October 18, 1999, and recorded at the Plymouth County Registry of Deeds (registry) at Book 17963, Page 37. Exhs. 5 & 16.

2. McGee currently operates an automobile and truck repair business at the Property with two mechanics, Tezel Cagdas (Cagdas) and Jack a.k.a. Jaco Oliveira (Oliveira), operating out of two garage bays in a building on the Property. Cagdas and Oliveira are not employees of McGee, but operate individual repair businesses at the Property. Tr. 1:172-176, 196-197, 219; 2:64; View.

3. The Property is situated on the boundary between the Town's R-3 Residence (R-3) and R-4 Residence (R-4) Zoning Districts with a portion of the Property located in each. Tr. 1:69-71; Exhs. 1-3.

4. Automobile service stations and repair shops, permitted by the Town of Rockland Zoning Bylaws (Bylaws) in other zoning districts, are not allowed by right or special permit in the R-3 or R-4 zoning districts. Exh. 1.

5. The Bylaws define a "junkyard" in the following manner:

JUNKYARD

Land, with or without building, primarily used for outside storage of used and or discarded materials (including but not limited to wastepaper, rags, metal, building materials, and vehicles) for processing, salvage, sale or other disposition.

Exh. 1.

6. With respect to nonconforming uses § 415-24 of the Bylaws provide, in relevant part, that:

A. Continuation. The lawful use of any structure or land existing at the time of the enactment or subsequent amendment of the bylaw may be continued although such structure or use did not conform with the provisions of the bylaw as adopted or amended.

B. Alteration. Preexisting 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 Zoning Board of Appeals that the extension or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

[Added 6-6-1994 ATM, Art. 25]…

E. Abandonment. All non-conforming uses which have been abandoned or discontinued for more than two years shall not be reestablished and any future use shall be in conformity with the provisions of this bylaw, except in the case of agricultural, horticultural, or floricultural uses where such non-use may exist for a period of five consecutive years.

F. Changes. Once changed to a conforming use, no structure or land shall be permitted to revert to a non-conforming use.

Exh. 1.

Permitting history of the Property

7. In 1995, a prior owner of the Property, Al Ricci (Ricci), applied to the Town of Rockland Zoning Board of Appeals (ZBA) for a special permit to buy and sell used cars, not exceeding ten at a time, on the Property. Exhs. 6 & 16.

8. On November 2 1995, the ZBA granted Ricci the special permit subject to the following conditions:

the petitioner may not apply for additional variances or special permits for expansion of use; a trial period is in effect to coincide with the issuance of a class 2 license by the Board of Selectman and the trial period will end when the license expires; hours of operation of Monday through Friday 8 a.m. to 6 p.m. and Saturday 9 a.m. to 3 p.m.; no external storage of parts; no class 3 vehicles or vehicles with substantial body damage (no impression of a junk yard); permission to have for sale a number of cars not to exceed seven (7); the Board will entertain the possibility of up to and not exceeding 10 cars at the conclusion of the one year trial period (which runs with the expiration of the class 2 license).

Exh. 6.

9. In 1997, McGee applied to the ZBA for a special permit to sell used cars and to wholesale cars to other dealers in Rockland, at the Property. Exhs. 7 & 16.

10. On August 20, 1997, the ZBA granted McGee a special permit to sell used cars (the 1997 Special Permit) subject to the following conditions:

-antenna banners only – no other advertising with banners, streamers

-no additional illumination

-no outside storage

-no dismantling of vehicles

-no junk cars on display

-no trucks, tractor trailers of cabs to be stored on property

-no body work

-no spray painting

-hours for car sales are 9 a.m. to 7:30 p.m. Mon-Fri Saturday 9 a.m. to 5 p.m., Sunday 12 p.m. to 4 p.m.

-signs subject to approval

-maintain a 10 foot buffer zone

-permit subject to review in 1 (one) year

-maximum of fifteen cars for sale or unregistered Exhs. 8 & 16.

11. Following approval of the 1997 Special Permit McGee obtained a Class II Used Car License from the Town of Rockland Board of Selectmen which was renewed annually through the end of 2007. Exh. 16.

12. On February 9, 2000, the ZBA held a public hearing on the issue of whether the 1997 Special Permit ought to be suspended or revoked for McGee's failure to comply with its enumerated conditions or the Bylaws. Exhs. 1, 9, 16.

13. Following the February 9, 2000, hearing the ZBA issued a Decision (2000 Special Permit) which modified and clarified the conditions of the 1997 Special Permit. The 2000 Special Permit modified some of the existing conditions and added further conditions requiring (1) a stockade fence to shield used cars that have been sold, (2) modification to outdoor lighting, (3) buffer zones, (4) preparation of a site plan or "As Built" plan of the Property, and (5) random inspections of the Property by the Zoning enforcement Officer. Exhs. 9 & 16.

14. By a letter to McGee dated February 29, 2000, then Inspector of Buildings and Zoning Enforcement Officer Douglas Jeffery stated, in part:

It was the opinion of Town Counsel that because this building was vacant at the time of the issuance of your original Special Permit in 1997 that you have now exceeded the scope of that permit by allowing outside dealers and the general public to bring their vehicles to this site to be worked on

Your Business alone is allowed to employ a Mechanic to conduct work on vehicles bought and sold by you exclusively and also you may have a Detailer to clean and detail vehicles that are bought and sold by you exclusively.

Therefore you are ORDERED to Cease & Desist and to no longer allow outside car dealers and/or the general public to bring their vehicles to this site to have work done on them.

Exh. 10.

15. On or about December 31, 2007, McGee's license to sell used cars lapsed and was not thereafter renewed. Exhs. 16 & 21.

16. On July 20, 2009, Ruble sent an enforcement letter to McGee stating that the displaying of cars for sale, and parking or storage of unregistered or inoperative vehicles at the Property violated Bylaws "Section V-C-7 and Mass. General Law Chapter 90 Section 7.N.1/4." Exhs. 16- 17.

17. In March 2012, the ZBA issued a decision (the 2012 Decision) denying an application by McGee for a special permit to display and sell used cars stating in part:

The Board found that the sale of used cars is not a permitted use by right or a use by Special Permit in [a R3/R4 zoning district] so unless the use is lawfully existing pre-existing nonconforming use ("grandfathered") and has been continued, the use cannot be approved by Special Permit and the Zoning Board cannot grant the requested relief. The Board found that the Applicant needed to get an opinion from the Zoning Enforcement Officer before filing with the Zoning Board of Appeals.

In the 2012 Decision the ZBA stated that "Ruble testified that the only grandfathered use allowed at this location is for auto repair only." Exhs. 16 & 19.

18. In a letter to McGee dated March 30, 2012, Ruble stated that the Property "was abandoned or discontinued and that the Zoning Board cannot grant a Special Permit for the display and sale of used vehicles" pursuant to section "415-24 of the Zoning By-law." Exh. 11 & 16.

19. McGee appealed the 2012 Decision to the Plymouth Superior Court, Civil Action No. 12- 00415 (the Superior Court Action). Ruble filed an affidavit in the Superior Court Action in which he stated, in part "Mr. McGee's use of 511 Union Street as an automobile repair shop is non-conforming under the current zoning by-laws, but this use, in my opinion is 'grandfathered' and need not comply from a use perspective with the current zoning by-laws. No permits and approvals from the Zoning Board are required for the continued non-conforming use of operating a repair shop provided the use does not intensify, expand or change. However, it is my opinion that the sale of used cars is considered a separate use from the repair shop use." The Superior Court Action was dismissed in 2014 and the judgment was affirmed by the Appeals Court in 2017. Exhs. 16 & 20.

20. Ruble contends that the conditions contained in the 2000 Special Permit, other than those specifically relating to the sale of used cars, are still enforceable. Ruble identified the conditions which no longer apply as (1) advertising limited to antenna banners, (2) restricted hours for car sales, and (3) maximum of 15 cars for sale. Tr. 1:95-97.

Use and condition of the Property

21. An automobile and truck repair business has operated at the Property continuously since before such a use was barred by the Bylaws. Tr. 1:30-33, 75-76, 216-218; 2:37-38, 45-46, 64. The parties agree that vehicle repair is a lawful nonconforming use at the Property. Tr. 1:93, 112, 120-121, 130, 139, 151,

22. Ruble identified the Property in a picture, dated 1946, showing an automobile service station with two gas pumps and two garage bays. Tr. 1:75-76; Exh. 12A-12B.

23. Ruble testified that before 1960 and continuing through the 1960's and 1970's the Property was used as a Gulf gas station. Tr. 1:75-76, 123.

24. Edward F. Kimball, Chairman of the Board of Selectmen for the Town, testified that he remembers the Property being used as a gas station with a garage in the early 1980's and also remembers seeing U-Haul trucks at the Property from time to time. Tr. 1:18, 30-33.

25. McGee testified that he bought the Property in 1997 from a man named Nick Rusko, who until 1997 rented it to a tenant who used the Property for automobile repair operating out of two garage bays and an outdoor vehicle lift. Tr. 1:216-218; 2:37-38.

26. McGee testified that since buying the Property in 1997, both garage bays have been consistently used for vehicle repair. During the period that McGee operated the used car sales business at the Property, most of the repair work was for the vehicles offered for sale. Cagdas also did repair work for his own clients at that time. Tr. 1:173-174, 219.

27. Cagdas testified that he began working as a mechanic at the Property in 1997, and that another mechanic worked there from 1997 until sometime after a bit after 2000. Cagdas further testified that Oliveira has worked as a mechanic at the Property for between five and ten years. Tr. 1:173-176.

28. In a letter to the Town of Rockland Assessor & Appraiser, dated December 29, 2007, McGee stated that "[t]he business know [sic] as McGee Used Car Annex is of this date and letter closed, the courts have let the license expire for the sale of used cars on this property." Exh. 21.

29. McGee testified that during divorce proceedings in the probate court in 2007, a court master took control of the Property and that the sale of used cars ceased; however, during that time the Property was still used for vehicle repair. Tr. 2:41-44.

30. McGee testified that neither he, Cagdas, nor Oliveira use the Property for junking or salvaging used cars. McGee explained the presence of unregistered and nonfunctioning cars on the Property stating that such vehicles are frequently towed to the property and are either totaled by the insurance company or the owner decides not to have them repaired. Such vehicles cannot be removed to a junk yard until McGee is in possession of the title. McGee testified that in some cases it takes a significant amount of time to obtain the title to inoperable vehicles and that a junk yard will not accept a car unless he has the title to go with it. Tr. 2:33-37. I credit McGee's testimony that the property is not being operated as a junkyard and that it may take a significant amount of time to go through the process of obtaining the certificate of title for abandoned vehicles prior to disposing of them.

31. Cagdas testified that no one at the Property is in the business of salvaging cars but that when they receive inoperable cars that are totaled by the insurance company or abandoned by their owners, such cars are sent to a junkyard when they can get the title to the vehicle. Cagdas testified that they might make a little money on the scrap value of such a car or for the cost of towing it to a junkyard. Tr. 1:197-200. I credit Cagdas's testimony.

32. Cagdas testified that the number of cars at the Property has increased slightly since McGee stopped selling cars but that the number of cars present has not increased in the last five or six years. Tr. 1:197, 209.

33. McGee testified that the amount of vehicle repairs performed at the Property has not changed since he stopped selling used cars but that mechanical work is now performed for the general public rather than for the purpose of preparing cars for sale. Tr. 1:221-222.

34. Based on the view, the testimony of McGee and Cagdas which I credit, and Google Earth images of the Property dated from 1995-2017, I find that the number of vehicles present at the Property has varied over the years but is not now significantly greater than in previous years under McGee's ownership. Exh. 15.

35. McGee testified about the presence of several large trucks and a Bobcat on the Property. McGee's testimony, which I credit, explained that one large truck had been parked at the Property for an extended period of time because a replacement motor had to be special ordered. McGee further testified that another large truck is the subject of a repair fee dispute between Oliveira and a customer who would rather abandon the truck than pay the repair bill. Finally, at the time of trial, the Bobcat had been at the Property for about two weeks in which time Oliveira performed some electrical work on it and it was used to do some work on the Property. Tr. 2:18- 26, 28-29.

Discussion

The Town, through Ruble, seeks to enjoin McGee, pursuant to G.L. c. 40A, § 7, from continuing alleged violations of the Bylaws. The Town argues that McGee's current use of the Property is an alteration or expansion of a prior lawful nonconforming use and therefore violates the Bylaws. Specifically the Town takes the position that the number of cars present at the Property has increased, the type of mechanical work has changed to include heavy equipment, and that the Property either looks like a junkyard or is in fact being used for salvage, a different nonconforming use. Further, the Town argues that some conditions placed on the Property in either the 1997 or 2000 Special Permits still apply today even though the used car sales allowed by those permits has been abandoned. For his part, McGee seeks attorney's fees and costs related to motions brought in reliance on allegations in the original complaint that the repair use was not a lawful nonconforming use, which were abandoned in the Town's Amended Complaint.

Expansion of the nonconforming use

"A prior nonconforming use is one that is lawfully carried on at the time a zoning ordinance or by-law is adopted that prohibits that use." Almeida v. Arruda, 89 Mass. App. Ct. 241 , 243 (2016), citing Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 529 (1990). The parties do not dispute that McGee's use of the Property for car repair is a lawful prior nonconforming use in the Town's R-3 and R-4 residential zoning districts. Rather, the Town argues that McGee has altered or expanded the use in a manner that requires approval by the town pursuant to G.L. c. 40A, § 6, and § 415-24 of the Bylaw.

"Prior nonconforming uses, and any proposed changes, extensions, or alterations, are governed by G.L. c. 40A, § 6. Pursuant to this statute, a prior nonconforming use of land is not subject to a later enacted ordinance or by-law." Almeida, 89 Mass. App. Ct. at 243. This protection, however, does not extend to "any change or substantial extension of such use." G.L. c. 40A, § 6. "The question is whether the [current] use is a change or substantial extension [of a prior nonconforming use] under § 6. If the answer is 'no,' then the [current] use is permitted as a protected prior nonconforming use." Almeida, 89 Mass. App. Ct. at 243. If the answer is "yes," then "no such extension or alteration shall be permitted unless there is a finding by the Zoning Board of Appeals that the extension or alteration is not substantially more detrimental to the neighborhood than the existing nonconforming structure or use." Bylaw § 415-24(B); see G.L. c. 40A, § 6.

There is a three part test used to determine whether a current use is a change or substantial extension of a lawful nonconforming use and therefore subject to the finding required by G.L. c. 40A, § 6, and § 415-24 of the Bylaw. The test, articulated by the SJC in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973), considers (1) whether the current use reflects the nature and purpose of the use prevailing when the zoning bylaw took effect;

(2) whether there is a difference in the quality or character, as well as the degree, of use; and

(3) whether the current use is different in kind in its effect on the neighborhood. Id. at 635. "The analysis and the result depend 'almost entirely on the particular facts of [the] case.'" Almeida, 89 Mass. App. Ct. at 244, quoting Powers, 363 Mass. at 653.

The Town argues that the use of the Property has changed substantially because (1) rather than simple car repair, the Property is now used for repair of heavy equipment including dump trucks and on one occasion a Bobcat; (2) the Property is now used for long term storage of unregistered and inoperable vehicles; and (3) the Property is now used for outside storage of parts, equipment, and large trucks.

I find that the use of the Property has not changed. First, the occasional repair of larger vehicles is not a significant change in the use of the Property for vehicle repair. The nonconforming use—vehicle repair—is broad enough to include the repair of both cars and trucks. In any event, McGee testified that trucks have always been repaired at the Property, including the trucks that he sold as part of his used car sale business. Tr. 1:217; 2:45-46, 64. Second, I do not accept that the Property now has an additional use characterized by the long term storage of unregistered or inoperable vehicles. I find that McGee and Cagdas adequately explained the process by which cars that cannot be repaired arrive at the Property from time to time and I credit their testimony that such vehicles are removed to a junkyard as soon as the necessary title documents are obtained. Finally, based on the view I find that the Property is not being used for the outside storage of parts or equipment. The testimony of McGee and Cagdas, which I credit, adequately explains the few occasions where a small number of large trucks have remained at the Property for extended periods of time. The extended stay of some vehicles owing to complex repair issues or fee disputes with owners, while undesirable, is part and parcel of the prior nonconforming use of the Property for vehicle repair. In sum, I find that there is not enough evidence of a change in use at the Property to meaningfully apply the Powers test. Nevertheless, I will address each prong of the test in consideration of the Town's arguments for the change in use at the Property.

The evidence shows that at the time the town adopted zoning the Property was a service station with two gas pumps and two garage bays used for vehicle repair. Today those gas pumps are gone, but the two garage bays remain in use for vehicle repair. The Property has always been used as a vehicle repair shop. I am not persuaded that the occasional repair of larger vehicles reflects a change in the nature or purpose of the Property and I do not find that the Property is being put to a new use in the form of long term storage of vehicles, parts, and equipment. The vehicle repair use has not changed in nature or purpose, and meets the first prong of the Powers test.

"The second prong may be satisfied when a [use] is 'reasonably adapted to the prior use,' is not 'extraordinary or unreasonable,' and does not 'change the fundamental nature of the original enterprise.'" Almeida, 89 Mass. App. Ct. at 246, quoting Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 411 (1995). To the extent that there is some variability in the size and type of vehicles repaired at the Property I find that any such repair is reasonably adapted to the prior use, is not extraordinary or unreasonable, and is wholly consistent with the fundamental nature of the Property's use for vehicle repair.

The evidence presented does not support a conclusion that the current use of the Property is any different in kind in its effect on the surrounding neighborhood. As the number of cars present at the property and the volume of repairs performed have not increased significantly, it is not reasonable to conclude that the current use has an effect on the surrounding neighborhood that is any different from the historical use of the property.

While the Town might prefer that vehicles present at the Property are neatly lined up, rather than maintained in the unquestionable degree of disorder observed at the view and through photographic evidence, the difference is not one which amounts to a significant change in use at the Property.

Applicability of the Special Permit conditions

The Town argues that some conditions of the 1997 and 2000 Special Permits are still applicable to the Property because the Town's concerns regarding the Property which gave rise to the conditions are the same today as they were when the permits were granted. This is not correct. Conditions in a special permit are put in place to address the impacts of the use allowed by the special permit. When the special permit lapses or the special permit use ceases, those conditions are no longer necessary and therefore lapse as well. The 1997 Special Permit allowed McGee to use the Property to sell used cars. It placed conditions on the use of the Property in exchange for the right to sell used cars. Now that McGee no longer has the 1997 Special Permit that gave him the right to sell used cars, the conditions that the Town deemed necessary to support that additional use are no longer necessary. To enforce them would serve only to restrict McGee's lawful use of his Property that required no special permit or other zoning relief. That the Town may have required some of the special permit conditions because of the existing, but lawful, nonconformities at the Property is of no effect.

McGee was under no obligation to seek a special permit from the Town to engage in his lawful nonconforming use of vehicle repair, and the Town had no right, independent of the permit application, to place conditions on McGee's use of the Property for vehicle repair. There is no support for the proposition that by requesting a special permit to expand his nonconforming use McGee gave the Town a right to place conditions on his lawful nonconforming use which would exist independent of the expanded use. The Town may not seek to retroactively apply conditions to McGee's prior lawful nonconforming use. See G.L. c. 40A, § 6. As McGee has abandoned the only use within the scope of the 1997 and 2000 Special Permits, the sale of used cars, the conditions contained within those permits are no longer applicable to the Property.

Bad faith in filing the Verified Complaint

In the original Verified Complaint filed in June 2015, the Town alleged, inter alia, that McGee was no longer allowed to "repair and service vehicles." Verified Complaint ¶ 35. After McGee filed a motion for summary judgment on the issue of whether or not he retained his lawful nonconforming use for vehicle repair the Town moved to amend the Verified Complaint to strike the allegation that McGee's vehicle repair use had been abandoned, restating it as a claim that McGee had unlawfully expanded his grandfathered use. The Amended Complaint was deemed filed on July 27, 2016. McGee contends that the Verified Complaint was filed in bad faith and, pursuant to G.L. c. 231, § 6F, seeks costs and fees associated with defending against the allegation which was struck in the Amended Complaint.

General Laws c. 231, § 6F states that "[u]pon motion of any party in any civil action in which a finding, verdict, decision, award, order or judgment has been made by a judge . . . the court may determine, after a hearing, as a separate and distinct finding, that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith . . . . If such a finding is made . . . the court shall award to each party against whom such claims were asserted an amount representing the reasonable costs and expenses incurred in defending against such claims." G.L. c. 231, § 6F. Section 6F is a "punitive" measure, designed to discourage insubstantial and frivolous actions or defenses. Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325 , 328- 29 (1997). It requires a showing that claims were frivolous and not advanced in good faith. Fronk v. Fowler, 456 Mass. 317 , 329 (2010); Hahn v. Planning Bd. of Stoughton, 403 Mass. 332 , 337 (1988). A claim is frivolous if it lacks a legal or factual basis and is without even a colorable basis in law. Fronk, 456 Mass. at 329. Determining the presence or absence of good faith is neither wholly subjective nor wholly objective, and may be reasonably inferred from the circumstances. Massachusetts Adventura Travel, Inc. v. Mason, 27 Mass. App. Ct. 293 , 296 (1989). Good faith implies an absence of malice, or no intent to defraud or seek an unconscionable advantage. Bad faith requires more than bad judgment or mere negligence: it requires a "dishonest purpose of some moral obliquity" or "conscious doing of wrong." Id. at 296, citing Spiegel v. Beacon Participations, Inc., 297 Mass. 398 , 417 (1937).

The Town's original position in the Verified Complaint that the repair use had lapsed contradicted the position that Ruble took in 2012 when he told the ZBA that vehicle repair was a lawful nonconforming use, Exh. 19, and when he stated in an affidavit in the Superior Court Action that "Mr. McGee's use of [the Property] as an automobile repair shop is non-conforming under the current zoning by-laws, but this use, in my opinion is 'grandfathered' and need not comply from a use perspective with the current zoning by-laws." Exh. 20, ¶ 6. It was, perhaps, more consistent with the position taken in 2000 by Ruble's predecessor, Douglas Jeffrey, in that McGee had no right to repair cars other than those he was buying and selling under his used-car sale special permit. Exh. 10. Nevertheless, I find that the Town's claim in the original Verified Complaint was insubstantial. The question is whether it was advanced in bad faith.

Ruble's testimony at trial offers little insight into his and the Town's rather opaque reasoning for the claim asserted in the original Verified Complaint. Indeed, Ruble could not adequately explain his reasoning at all. Tr. 1:111-115, 135-140, 147-162. He was confused about which documents he reviewed, when he reviewed them, and how they informed his opinion as to the status of the Property. I find that the Town's claim was advanced not in bad faith, but rather because of Ruble's misunderstanding and confusion. The Town subsequently dropped its claim when it became clear it had no merit. Finding that the Verified Complaint was not filed for any improper purpose I deny McGee's request for costs and fees brought pursuant to G.L. c. 231, § 6F.

Conclusion

For the reasons set forth above, McGee has not expanded or altered the lawful nonconforming vehicle repair use at the property and is not subject to the conditions of either the 1997 Special Permit or the 2000 Special Permit because he has abandoned the sale of used cars at the Property and no longer retains that right. The Plaintiffs' Verified Complaint was not wholly insubstantial, frivolous, and not advanced in good faith and McGee is not entitled to costs and fees under G.L. c. 231, § 6F.

Judgment Accordingly