October 2, 2019

Bristol, ss.




Plaintiff Michael Duggan is the owner of the commercial building at 17 Jay Street in North Attleborough where his law firm has long been located. It is in a residential district, but is grandfathered for use as "professional office space." The question presented in this case is whether that grandfathering extends to a licensed massage therapist, to whom Mr. Duggan wishes to sublet part of the building. The building commissioner ruled "no", the zoning board of appeals denied Mr. Duggan's appeal from that ruling, and the matter is now before this court by G.L. c.40A, §17 appeal from the board's decision.

The case was tried before me, jury-waived. Based on the evidence at trial and my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, I find and rule as follows.


These are the facts as I find them after trial.

17 Jay Street is a single story building, 20' wide x 80' long, on a 4,224 square foot lot with an eight-car parking lot. The building dates from 1933 and, at various times, has been used as a garage, for light manufacturing, and as offices.

Mr. Duggan purchased it in 2004 and applied for a building permit to renovate it entirely into office space. The building commissioner issued the building permit on October 13, 2004, noting that the use would be for "professional office space," [Note 1] and an occupancy permit was issued on January 6, 2005 allowing its occupancy for "Group B" uses. This Group "includes, among others, the use of a building or structure, or a portion thereof, for office, professional or service-type transactions..." and includes, but is not limited to, "clinic-outpatient" and "professional services (architects, attorneys, dentists, physicians, engineers, etc.)" See State Building Code, §304. [Note 1].

Mr. Duggan operates his law practice from the building and has done so since the issuance of the occupancy permit. Over the years, he has had up to two other lawyers working with him along with two administrative assistants. Real estate closings - a staple of their practice - routinely brought additional individuals to the building, including the buyers, the sellers, and the brokers. Thus, at such times, there were as many as six to eight people in the building.

Mr. Duggan did not make any changes to the parking area when he bought the building, nor at any time since. Its eight spaces, each 10' wide x 20' long, in their current configuration, are the way the parking area has always been laid out and operated. So far as the evidence showed, there has never been a shortage of parking, and the lot was fully compliant with the zoning bylaw in effect at the time his building and occupancy permits were issued (2004/2005) (7 parking spaces for a 1600 square foot commercial building). Depending upon where they park in the lot, one or more cars may need to back out onto Jay Street when they leave. But this has never been a problem or created problems either in the parking lot or on the street. The building is in a residential area and traffic on Jay Street is sparse, with cars passing by only "every once in a while." There was no evidence of any accidents, incidents, or conflicts associated with activities in the building either in the parking lot, on Jay Street, or on the adjacent roads.

Mr. Duggan is currently practicing on his own with only one other person with him and thus has empty offices in the building that he doesn't need and would like to rent. A licensed massage therapist is interested in renting them. She is the sole employee of her business, with only a part-time assistant at present (who may not come with her to this location), and has no plans to hire other associates or employees. She will treat only one patient at a time with, at most, one other in a waiting room. When Mr. Duggan approached the building inspector for a ruling on whether he could rent to the therapist, he was told that he could not. In the view of the building inspector, only professionals such as "architect, engineer, doctor [or] attorney" would be permitted. [Note 2]

Mr. Duggan timely appealed the building inspector's ruling to the zoning board of appeals and, on December 12, 2017, the board affirmed the ruling. The stated basis of its ruling was as follows:

The property in question is in a very densely populated part of the Town where parking on the street would be detrimental to the integrity of an R10 Residential Neighborhood and adverse to the quality of life for the neighbors. They [the board members] felt that the allowance of any additional businesses, specifically going from one business onsite within a Residential District, to two business[es] or more would be an expansion of the nonconformity and would require the owner of the property to seek relief through the Zoning Board of Appeals.

Zoning Board Decision at 3.

There was no evidence that cars coming to the building park on the street, and certainly none I find persuasive. To the contrary, the evidence showed that the parking lot has had, and will continue to have, more than enough spaces for those who will work at the building and their clients. As discussed more fully below, I find that the board was also wrong in its ruling that a licensed massage therapist would be "an expansion of the nonconformity." To the contrary, such a therapist is a professional falling squarely within the long-approved use of "professional office space," and her practice, using offices previously occupied by lawyers and their assistants with no new space created or used and with even less impact on the neighborhood than they had, is grandfathered with no need for any "relief through the Zoning Board of Appeals."

Further facts are set forth in the Discussion section below.


Judicial review in a G.L. c. 40A, §17 appeal, involves de novo fact-finding by the court and then, based on those facts, a review of the correctness of the Board's decision. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 (1954). The court's fact finding is entirely de novo, with no weight given to the findings of the board. Pendergast, 331 Mass. 555 , 558-59 (1954). Similarly, the board's conclusion that a licensed massage therapist is not a "professional" within the protected "professional office space" use, is not binding on this court. Interpreting a bylaw, its application, and the scope of grandfathering protection in light of the facts as found by the court is a matter of law for the court, with no deference accorded to an incorrect interpretation by the board. See Shirley Wayside Ltd. P'ship v. Bd. of Appeals, 461 Mass. 469 , 474-75 (2012).

The analysis begins with the building permit issued on October 13, 2004 and the occupancy permit issued on January 6, 2005. The use the building inspector found permissible was "Professional Office Space," and the offices he allowed to be built are the ones that exist today. See Building Permit (Oct. 13, 2004) ("Professional Office Space"); Certificate of Occupancy (Jan. 6, 2005) (Group B uses approved for occupancy, [Note 3] with up to 20 occupants allowed per floor). To the extent Mr. Duggan's renovation of the building into solely office space was a "change" of its previous nonconforming use, the building inspector's decision to issue the permits was his determination that it was not a "substantially different" one and was thus allowable under the bylaw. See Bylaw §VII.B.1.f ("any nonconforming use of a structure may be changed to another nonconforming use, provided the change[d] use is not a substantially different use as determined by the Building Inspector"). No one challenged that determination, and the building was renovated and subsequently occupied in accordance with it. More than six years have passed since those permits were issued, and the offices, their use as "professional office space", and the associated parking lot and spaces are now entitled to full "grandfathered" protection. See G.L. c. 40A, §7. [Note 4]

The question thus becomes whether a licensed massage therapist is a "professional" within the scope of the grandfathering. The building inspector ruled "no." I disagree.

The bylaw does not define "professional." I thus interpret it under the usual rules of construction, guided by "usual and accepted meanings from sources presumably known to the by-laws enactors, such as their own use in other legal contexts and dictionary definitions." Framingham Clinic, Inc. v. Zoning Bd. of Appeals, 382 Mass. 283 , 290 (1981) (quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977)) (internal quotation marks omitted).

The Supreme Judicial Court did the same, in exactly the same context (who is a "professional"?) in Framingham Clinic, and the definition it used is particularly apt here: "a calling in which one professes to have acquired some special knowledge used by way either of instructing, guiding, or advising others, or of serving them in some art." Framingham Clinic, 382 Mass. at 292 (citing WEBSTER'S NEW INT'L DICTIONARY 1975 (2d ed. 1959)) (internal quotation marks omitted). See also THE AMERICAN HERITAGE COLLEGE DICTIONARY 1112 (4th ed. 2002) (Profession: "an occupation such as law that requires considerable training and specialized study," Professional: "of, relating to, engaged in, or suitable for a profession: lawyers, doctors, and other professional people" . . . "conforming to the standards of a profession" . . . "a skilled practitioner; an expert."). Licensed massage therapists fall squarely within these definitions. As explained more fully below, licensed massage therapy requires "special knowledge," and it is an "art" (a "skill acquired by experience, study, or observation" [Note 5]) where the therapist works with the human body to cure or ameliorate ailments. Like lawyers, and especially like medical professionals, it has strict educational requirements (schools must be accredited), a certification process, a board that licenses and oversees practitioners, regulations, a code of ethics, and an overseeing professional association.

There is a board of registration of massage therapy, which consists of seven members including licensed massage therapists, a health agent employed by or elected to a municipal board of health, and an individual engaged in the operation of a licensed massage school. See G.L. c. 13, §98. This board adopts rules and regulations for the licensure of massage therapists, the practice of massage therapy, and the operation of massage schools. See G.L. c. 13, § 99. The board of registration also establishes "standards of professional and ethical conduct," standards for continuing education, and investigates complaints. See G.L. c. 13, §99. Importantly, these statutory provisions refer to the massage therapy board as establishing the standards of professional and ethical conduct, referring to the act of practicing massage therapy as regulated by standards of professionalism. Furthermore, this chapter of the General Laws also includes the division and boards of registration for dentistry, pharmacy, veterinary medicine, and architects, which are all individuals generally considered to be professionals within society.

For a massage therapy school to become licensed, the facility must meet a minimum set of standards for training and education in accordance with G.L. c. 13 §§228-236. There are also standards for obtaining a license to operate a Massage Therapy Establishment. See 259 CMR 6.00. Additionally, there is extensive training to become a licensed massage therapist. An applicant must complete a massage therapy board-approved course of study that includes a minimum of 650 classroom hours or the equivalent number of hours of supervised instruction at a licensed massage school. See 259 CMR 3.01(2)(e). In addition to the educational component, the application requires two letters of professional reference that address the applicant's competency and professional integrity. See 259 CMR 3.01(2)(c). Further, there are moral character standards, and limitations on licensure for those convicted of certain crimes within a ten year period of applying. See 259 CMR 3.01. An applicant granted a license must also renew their license annually. See 259 CMR 3.02. Taking these criteria into consideration, including the schooling to become a massage therapist, the licensing process, the existence of a board of overseers, and the fact that a massage therapist applies an "art" to working with the body, a licensed massage therapist is a professional whose office qualifies as a professional office.

Mr. Duggan requested a general declaration from the Court that his building may be rented to "attorneys, dentists, physicians, engineers and similar professional services including, without limitation, licensed therapists." I decline to do so. First, there is presently no case in controversy over renting to such individuals, and declaratory judgments cannot be granted absent an actual controversy. See G.L. c. 231A, §1. Second, no such general declaration can be made. As the Supreme Judicial Court has noted, there is no comprehensive definition of "professional" in a zoning context, and each situation should be judged on its own. See Framingham Clinic, 382 Mass. at 292 n.8.

The board argues that allowing the massage therapist to rent an office in the building will negatively impact the neighborhood due to insufficient parking in the lot and inadequate turn-around space. I disagree, on both factual and legal grounds.

First, there is no factual basis for such a claim, and it strikes me as pretextual. No expert analysis is needed to see that a single therapist and her part time assistant, treating one patient at a time, will not increase traffic over and above what has existed in the past when the building was all lawyers - indeed, as many as three lawyers plus their administrative assistants. The number of offices is unchanged, and traffic will likely decrease not only because there are fewer people in those offices, but also because (unlike a therapist treating a single patient at a time) lawyers, and real estate lawyers in particular, often have meetings and closings with multiple persons attending. Even with those meetings and closings happening frequently, there have been no problems with traffic, the adequacy of parking, or the way cars maneuver into or out of the parking lot onto Jay Street for the nearly fifteen years the building has operated as "professional offices," and there is no basis for concluding that there will be such problems just because a single licensed massage therapist will now be practicing in offices previously occupied by a lawyer.

Second, the building, the use of the building as "professional office space", and its associated parking lot in its present configuration are grandfathered. The determination that the parking lot "worked" for this number of offices, occupied by professionals, was made in December 2004, far more than six years ago, and is thus protected. See G.L. c. 40A, §7.


For the foregoing reasons, I find and rule that Mr. Duggan may rent office space to the licensed massage therapist, and the board's decision upholding the building inspector's ruling that Mr. Duggan may not do so is REVERSED and VACATED. Judgment shall enter accordingly.



[Note 1] The zoning bylaw provides that "any nonconforming use of a structure may be changed to another nonconforming use, provided the change[d] use is not a substantially different use as determined by the Building Inspector." Bylaw §VII.B.1.f. The building commissioner issued the building and occupancy permits under that authority, and no one challenged that decision.

[Note 2] See building inspector's email (Oct. 31, 2017) and letter (Dec. 12, 2017).

[Note 3] As previously noted, Group B uses include "office, professional or service-type transactions . . .". The uses specifically permitted include, but are not limited to, "clinic-outpatient," and "professional services (architects, attorneys, dentists, physicians, engineers, etc.)" See State Building Code, §304.1.

[Note 4] As provided in G. L. c. 40A § 7, "[i]f real property has been improved and used in accordance with the terms of the original building permit, no criminal or civil action intended to compel the abandonment, limitation or modification of the use allowed by the permit or the removal, alteration or relocation of a structure erected in reliance upon the permit by reason of an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter shall be maintained unless the action, suit or proceeding is commenced and notice of the action, suit or proceeding is recorded in the registry of deeds for each county or district in which the land lies or, in the case of registered land, the notice is filed in the registry district in which the land lies within 6 years of the commencement of the alleged violation."

[Note 5] See Art, WEBSTER'S NEW INT'L DICTIONARY, available at https://www.merriam-webster.com/dictionary/art.