RONALD N. LUSSIER v. SCOTT A. RHODES and KAREN L. RHODES and BRIAN T. SALISBURY, BRIAN WRIGHT, PETER GABRIELLE, JAMES R. DUNLEA AND ARTURO PATURZO, AS THEY ARE MEMBERS OF THE BELLINGHAM ZONING BOARD OF APPEALS.

The plaintiff and the defendants own abutting parcels in Bellingham, each of which is a longstanding nonconforming parcel with no street frontage, and each of which is the site of a longstanding nonconforming structure. Since a fire in 2006, the structure on the defendants' parcel has remained unoccupied. The plaintiff, Ronald Lussier, now appeals a decision of the Town of Bellingham Zoning Board of Appeals (the "Board") granting the defendants, Scott and Karen Rhodes, a special permit allowing the re-establishment of the lawful nonconforming status of their parcel and structure. Mr. Lussier seeks to prevent the Rhodes' from re-establishing the use of the dwelling on the Rhodes' property, acknowledging that he seeks to leverage such a decision into a situation in which the Rhodes would be more inclined to combine their property with his to be sold for a more profitable commercial use. [Note 1]

This case commenced on May 23, 2017 with the complaint of Mr. Lussier filed pursuant to G.L. c. 40A, § 17, challenging the Board's decision granting a special permit to re-establish the use of a pre-existing nonconforming single-family dwelling owned by the Rhodes. The Rhodes filed their motion for summary judgment on May 4, 2018. Mr. Lussier filed an opposition on June 1, 2018 and a hearing was held on the motion on October 30, 2018. For the reasons stated below, the Rhodes' motion for summary judgment is ALLOWED.

FACTS

The undisputed facts established in the record and pertinent to the motion for summary judgment, with all reasonable inferences drawn in the light most favorable to the non-moving party, Mr. Lussier, are as follows:

1. Mr. Lussier is the owner of the property located at 26 Wrentham Street, Bellingham. Mr. Lussier's property abuts and is located behind the Rhodes' property, with its access from Wrentham Street over an easement.

2. The Rhodes purchased an 8,503 square foot parcel of land located at 24 Wrentham Street, Bellingham (the "Rhodes Property") on June 16, 2006. The Rhodes Property was improved with a single-family dwelling and 3-car garage. [Note 2]

3. The Rhodes Property was originally part of a larger parcel of land until it was subdivided into three lots on August 10, 1972 pursuant to an Approval Not Required ("ANR") plan pursuant to G. L. c. 41, § 81P, approved by the Bellingham Planning Board on August 10, 1972, recorded with the Norfolk County Registry of Deeds on August 31, 1972 as Plan No. 693 of 1972 in Book 4869, Page 114 (the "ANR plan"). [Note 3]

4. At the time of the approval of the ANR plan in 1972, the dwelling and garage on the Rhodes Property, as well as a dwelling on the other two resulting lots, were already in existence. The dwelling and garage were constructed on what is now the Rhodes Property in 1951, prior to the establishment of the Town of Bellingham Code of Bylaws (the "Bylaw") in 1960. [Note 4]

5. The Lussier and Rhodes Properties are located in a Business-1 Zoning District, which allows for single-family dwellings as a matter of right. The house on the Rhodes Property does not comply with dimensional requirements of the Bylaw in that it has insufficient setbacks, has no frontage on a way and is accessed only by a 10 foot wide easement. [Note 5]

6. On December 23, 2006, the dwelling on the Rhodes Property sustained damage to the kitchen due to a fire, with smoke damage throughout the building. Although damaged, the dwelling was not destroyed. [Note 6]

7. On December 23, 2006, National Grid disconnected power to the Rhodes Property. [Note 7]

8. The Rhodes Property has remained vacant since December 23, 2006, for a period of over 10 years. [Note 8]

9. The Rhodes took no steps to immediately repair the damage caused by the 2006 fire, and left the dwelling vacant and unrepaired until their recent efforts that are the subject of the present action. [Note 9]

10. On two separate occasions, the Rhodes were sent notices by the Bellingham Building Commissioner, dated November 6, 2014 and January 20, 2015, requiring certain repairs to be performed prior to re-occupying the dwelling. [Note 10] It was not until February 13, 2015 that the Rhodes first applied for (and were granted) a building permit to enter the property to perform repairs required by the Bellingham Building Inspector's Notices. [Note 11]

11. On October 21, 2016, the Rhodes were issued a subsequent building permit to perform repairs and renovations to the interior of the dwelling. [Note 12]

12. On March 23, 2017, the Rhodes' applied for a special permit under § 240-30(C) of the Bylaw seeking to re-establish the nonconforming use of the Property.

13. Section 240-30(C) of the Bylaw provides: "Abandonment. A nonconforming use or structure which has been abandoned, or discontinued for a period of two years, shall not be reestablished; provided, however, that, by special permit granted by the Zoning Board of Appeals, the use of an abandoned nonconforming residential structure, or any portion thereof, may be reestablished. In all other respects, any future use of the subject premises shall conform with this bylaw."

14. Section 140-2 of the Bylaw defines "Abandoned" as follows: "A residential property which is not being used or occupied as a residence despite containing a residential building. 'Abandoned' does not include a residential building that is unoccupied while undergoing renovations, or while undergoing repairs due to fire or other casualty. 'Abandoned' does not apply to accessory buildings or structures on the premises nor does it apply to residential property that is temporarily vacant due to seasonal absences."

15. A hearing on the Rhodes' application for a special permit was held on May 4, 2017 and a decision granting the special permit was issued by the Board and filed with the Town Clerk on May 10, 2017. [Note 13]

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros., supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). 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., supra, 436 Mass. at 648. When appropriate, summary judgment maybe 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 Rhodes now move for summary judgment, arguing that the Board acted within the proper exercise of its discretion in issuing a special permit allowing the Rhodes to re-establish the lawful nonconforming use of their property under the authority of Section 240-30(C) of the Bylaw, as amended in 2011.

In opposing the motion, Mr. Lussier's argument is two-fold and narrow: (1) the Rhodes Property and the dwelling on the property never qualified as a lawful nonconforming lot or structure, and therefore, the Board could not authorize the "re-establishment" of a lawful nonconforming condition that did not exist. Mr. Lussier argues that while the use of the Rhodes Property for a single-family dwelling is allowed in the Business-1 Zoning District, the Rhodes Property itself was never a legally pre-existing nonconforming lot and, therefore, is not entitled to protections afforded to such grandfathered pre-existing nonconforming lots; and (2) Section 240-30(C) allows the re-establishment of lawful nonconforming conditions that were "abandoned," but not those that were "discontinued." Mr. Lussier argues that the use of the nonconforming structure on the Rhodes Property was discontinued, and not abandoned, and that accordingly, the Board had no authority to allow the re-establishment of a condition that had been discontinued. Even if the Rhodes Property qualified as a lawful prior nonconforming lot, the Board did not have the authority to re-establish the nonconforming use under Section 240- 30(C) of the Bylaw because the Rhodes discontinued, rather than abandoned, their use of the dwelling on the property for a period of over two years.

I. The Rhodes Property and the Buildings on the Property Qualify as a Lawfully Pre-existing Nonconforming Lot And Structures.

It is undisputed that use of the Rhodes Property for a single-family dwelling is an allowed use in the Business-1 Zoning District pursuant to the Bylaw. However, the Rhodes Property is nonconforming with respect to frontage, setbacks and lot area, and has been so since approval of the ANR plan in 1972.

At the time the Rhodes Property and the adjacent lots were created in 1972 by the endorsement of the ANR plan, the dwelling and garage already existed on the Rhodes Property. Mr. Lussier is correct that approval of the ANR plan by the Planning Board did not, if the resulting lots did not otherwise comply with dimensional zoning requirements, confer zoning compliance on the resulting three lots. "The planning board's endorsement, 'approval not required,' on the plan dividing the land in question into three lots gives the lots no standing under the zoning ordinance. (internal citation omitted) The finality of such an endorsement for purposes of the Subdivision Control Law…has no bearing on compliance with zoning requirements." Gattozzi v. Director of Inspectional Services of Melrose, 6 Mass. App. Ct. 889 (1976). See, Planning Bd. of Nantucket v. Bd. of Appeals of Nantucket, 15 Mass. 733 , 738 (1983) ("[E]ndorsement under § 81P of the plan creating lots…gave those lots no standing under the zoning by-law.").

However, pursuant to a recent amendment to G. L. c. 40A, § 7, regardless whether the Rhodes Property and the buildings on the property qualified as a lawfully pre-existing nonconforming lot at the time it was created by the approval of the ANR plan in 1972, they acquired lawful nonconforming status after ten years. G. L. c. 40A, § 7, as amended by St. 2016, c. 184, § 2, provides in relevant part: "If real property has been improved by the erection or alteration of 1 or more structures and the structures or alterations have been in existence for a period of at least 10 years and no notice of an action, suit or proceeding as to an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter has been recorded in the registry of deeds for the county or district in which the real estate is located … then the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to section 6 and any local ordinance or by-law relating to non-conforming structures." There is no suggestion in the record that any "action, suit or proceeding as to an alleged violation" was commenced at any time in the more than forty years since the ANR plan was endorsed, and in fact the parties appear to agree that the town has taken no such action. Accordingly, pursuant to the above-referenced amendment to G. L. c. 40A, § 7, the structures on the Rhodes property acquired and retained lawful pre-existing nonconforming status, until such time as the nonconforming status was abandoned or discontinued.

II. The Lawful Nonconforming Status of the Rhodes Property Was Abandoned Within the Meaning of the Bylaw After the 2006 Fire.

It is undisputed that the Rhodes ceased the occupancy of the building on their property as a single-family dwelling and left it vacant after the fire in December, 2006. The Rhodes concede that the dwelling has been left vacant to the present, and that they only applied for a building permit to perform repairs to damage caused by the 2006 fire in February, 2015 and again in October, 2016, to perform repairs and renovations to the interior of the building. As a result of their non-use of the nonconforming structure as a dwelling, whether described as abandoned, or whether described as discontinued for a period of over two years, the Rhodes Property lost its legally non-conforming status. Section 240-30(C) of the Bylaw provides, in relevant part, that "[a] nonconforming use or structure which has been abandoned, or discontinued for a period of two years, shall not be reestablished[.]" However, the Bylaw further provides that under certain circumstances, an owner whose property has lost its status as lawfully nonconforming may apply to the Board for a special permit to re-establish the property's status as lawfully nonconforming. "[B]y special permit granted by the Zoning Board of Appeals, the use of an abandoned nonconforming residential structure, or any portion thereof, may be reestablished. In all other respects, any future use of the subject premises shall conform with this bylaw."

Mr. Lussier argues that this special permit provision was not available to the Rhodes, because the lawful nonconforming status of their property was lost through discontinuance and not through abandonment. As the Bylaw only permits the re-establishment of nonconforming use status for a use or structure that had been abandoned, as opposed to one that had lost its status due to discontinuance for a period of two years or more, Mr. Lussier argues that the remedy granted by the Board was not available to the Rhodes.

Absent a different treatment in the local bylaw, the terms abandonment and discontinuance have two different meanings, with abandonment requiring a showing of intent to abandon a lawful nonconforming structure or use. "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 Co. v. City of Chelsea, 407 Mass. 703 . 708 (1990), citing Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560565 (1954). In addition to abandonment, which has a subjective component, municipalities may choose to provide for the extinguishment of nonconforming uses by the simpler, objective measure of whether the use of a nonconforming structure had been discontinued for a period of at least two years. Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 (1987).

"[A] municipality now has two choices for terminating nonconforming uses, one being abandonment and the other a simple cessation of a nonconforming use for a period of at least two years." Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 424 Mass. 404 , 406 (1997), quoting Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 40 Mass. App. Ct. 71 , 73 (1996). "[A] city or town may employ either or both" of these methods for determining the cessation of a nonconforming condition. Bartlett v. Bd. of Appeals of Lakevilee, supra, 23 Mass. App. Ct at 669. An examination of the Bylaw shows that Bellingham has chosen to equate "abandonment" with "discontinuance," notwithstanding the tautology that use of the two terms synonymously entails.

Although the Bylaw provides for extinguishment by either abandonment or discontinuance, and allows for re-establishment only for nonconforming uses or structures that had lost their status through abandonment, it is plain from the definition of "abandoned" used in the Bylaw that unlike the result that would otherwise pertain, under the Bylaw, the two terms are essentially equivalent, both providing for the extinguishment of nonconforming status on the basis of an objective measurement of simple non-use for a period of two years or more. The Bylaw defines "abandoned" as "[a] residential property which is not being used or occupied as a residence despite containing a residential building. 'Abandoned' does not include a residential building that is unoccupied while undergoing renovations, or while undergoing repairs due to fire or other casualty. 'Abandoned' does not apply to accessory buildings or structures on the premises nor does it apply to residential property that is temporarily vacant due to seasonal absences." Bylaw, § 140-2. Under this definition, status of a property as lawfully nonconforming will be considered "abandoned" and therefore extinguished, upon the simple cessation of the occupancy for residential purposes, provided that the failure to occupy was not for the purpose of making repairs or renovations. The undisputed facts in the present case are that the Rhodes simply left the property unoccupied for almost ten years after the fire, without any attempt, until 2015, to make any repairs. Under these circumstances, the loss of nonconforming status of the Rhodes Property falls under either the discontinuance or the abandonment provisions of the Bylaw. Consequently, the Rhodes were not precluded from applying for the re-establishment of the nonconforming status of the property under Section 240- 30(C), and the Board could permissibly base its decision granting a special permit on that section.

CONCLUSION

For the reasons stated above, the defendants' motion for summary judgment is ALLOWED. Judgment will enter affirming the Board's decision granting the Rhodes' application for a special permit.