120 FRONT STREET, LLC, v. MARC LEBLANC, KATHERINE MAHONEY, DOMINGO ALVES, ELIZABETH DUNN and TAD WOLLENHAUPT, as they are Members of the Marion Zoning Board of Appeals.

This case presents two issues: (1) whether the Town of Marion, Massachusetts's Zoning Bylaws permanently "grandfather" uses of properties that the Bylaws outlaw, if those uses began before the Town adopted its original Bylaws; and, if not, (2) whether a property at 120 Front Street in Marion, a property that's in a district zoned for single-family homes only, nevertheless may host a two-family home without special approvals from the Town. This Court interprets the Bylaws as not permanently grandfathering pre-existing, but now nonconforming, uses. This Court also holds that, while the Bylaws at one time allowed 120 Front Street to be used for two-family purposes without special approvals, that right lapsed in November 2012.

The parties to this case are plaintiff 120 Front Street, LLC, the current owner of 120 Front Street, and the defendant members of the Marion Zoning Board of Appeals (the "Board"). In October 2017, the LLC applied for a building permit. The LLC sought to raze a fire-damaged two-family dwelling on 120 Front Street (the "Old House") and build a new two-family dwelling there (the "New House").

Marion's building inspector denied the building permit. He cited concerns that the Old House had been "abandoned" for so long that the LLC lost the right under Marion's Zoning Bylaws to continue using 120 Front Street for two-family purposes. The LLC appealed the permit denial to the Board under G.L. c. 40A, §§ 8 and 15. In a March 2018 decision, the Board agreed that no one had "abandoned" the Old House or 120 Front Street. Instead, the Board ruled that the Old House went unused as a two-family residence for more than two years following the Old House fire. Section 6.1.6 of the Zoning Bylaws states that a nonconforming use "which 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 bylaw." (Emphasis added.) The Board thus upheld the building inspector's denial of a building permit on grounds of non-use. The LLC timely asked this Court under id. at § 17 to review the Board's decision.

The parties appeared for trial on November 19, 2018. Having heard the parties' witnesses and seen their evidence, having reviewed their stipulations of fact and their briefs, and having heard the arguments of counsel, this Court finds the facts described above as well as these:

1. The Old House dates from 1885. For many years (beginning at the latest in 1950) it had been used as a two-family residence.

2. Marion adopted its original Zoning Bylaws in 1954.

3. A fire swept through the Old House in November 2010, leaving the building standing but ruining its interior. At the time of the fire, the Old House was in use as a two-family residence.

4. 120 Front Street's then-owner, Peter E. Sowden, Trustee of the Barbara M. Sell Realty Trust, received between $160,000 and $180,000 in insurance proceeds as a consequence of the fire. Trustee Sowden planned to gut and rebuild the entire interior of the Old House, and he obtained three building permits in 2011 to that end. Each building permit bore this legend: "THIS BUILDING SHALL NOT BE OCCUPIED UNTIL AN OCCUPANCY PERMIT HAS BEEN ISSUED." Trustee Sowden complied with that direction.

5. In early 2013, Christian Loranger (at the time of trial, the sole owner and manager of the LLC) approached Trustee Sowden about buying 120 Front Street. At that time, the Trustee hadn't completed the renovations he'd first envisioned, and he hadn't received a certificate of completion from the Town's building inspector for the work authorized by the 2011 building permits. The Trustee had gutted the interior of the Old House, had installed rough plumbing and electrical systems, and had sheetrocked the house's interior walls. But by the time Loranger approached the Trustee about buying 120 Front Street, no one had been living in any part of the Old House since the November 2010 fire. The house was still unoccupied in October 2013, when the LLC bought 120 Front Street.

6. In early 2014, with the Old House still unoccupied, Mr. Loranger met with the building inspector to see if the LLC could continue to renovate the Old House under Trustee Sowden's 2011 building permits. The building inspector told Loranger that the LLC needed to apply for new building permits to do that.

7. In April 2014, Marion's Fire Chief asked Mr. Loranger if he'd allow the Fire Department to conduct training exercises at 120 Front Street. Loranger agreed, and in August 2014, the LLC applied for and received a building permit to burn down the Old House and have its debris removed. It turned out, however, that torching the Old House required more than a gallon of gasoline and a box of matches. Asbestos in the house had to be abated and utilities had to be disconnected. One also had to be prepared to backfill the house's foundation promptly after the fire exercise. The LLC eventually spent a year's worth of effort, and several thousand dollars, preparing for the exercise when the Fire Department informed the LLC that the Department had lost permission for the event. The Old House nevertheless was used for several first-responder training programs over the years (the last occurred in 2018), all the while being unoccupied.

8. Between June 2014 and late 2016, the LLC hired a series of architects and engineers to plan what would become the New House.

9. In 2016, the building inspector contacted the LLC. The inspector reported that he'd received complaints about the unoccupied Old House having no windows. The inspector told the LLC that it needed to install windows in the house or else the inspector "would have to condemn it." The LLC replaced the windows at a cost of around $2,000.

10. In December 2016, the LLC applied to the Marion Conservation Commission for an "order of conditions" allowing construction of a residential dwelling at 120 Front Street. In February 2017, the Commission issued an order, but not the one the LLC wanted: the Commission's order prohibited the work described in the LLC's December 2016 application.

11. In August 2017, the LLC filed a second application with the Commission, seeking approval of revised construction plans for a residential dwelling at 120 Front Street. In September 2017, the Commission granted an order of conditions approving the construction.

12. In October 2017, the LLC applied for a building permit to "Remove Existing 2 Family Home and Build a New 2 Family Home." The building inspector denied that permit in November 2017. That denial resulted in this appeal.

13. The parties stipulate that § 6.1 of the Zoning Bylaws, titled "Nonconforming Uses and Structures," as that section appears in Trial Exhibit 9, contains the Bylaws that applied to the LLC's October 2017 building-permit application. Section 6.1 provides:

1. Applicability

No provision of this zoning bylaw shall apply to structures or uses lawfully in existence . . . before the first publication of notice of the public hearing required by M.G.L., c. 40A, s. 5. Such prior, lawfully existing nonconforming uses and structures may continue, provided that no modification of the use or structure is accomplished, unless authorized hereunder. . . .

5. Nonconforming Single- and Two-family Structures

Nonconforming . . . two-family residential structures may be reconstructed, extended, altered or structurally changes upon a determination by the Building Commissioner that such proposed reconstruction, extension, alteration, or change does not increase the nonconforming nature of said structure. The following types of changes shall be deemed not to increase the nonconforming nature of said structure In any other case, the Building Commissioner shall refer the matter to the Board of Appeals. The Board of Appeals may, by Special Permit, allow such reconstruction, extension, alteration or change. . . .

6. Abandonment or Non-Use

A nonconforming use or structure which 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 bylaw.

7. Catastrophe or Demolition

Any nonconforming structure may be reconstructed after a fire, explosion or other catastrophe or after demolition, provided that such reconstruction is completed within twenty four months after such catastrophe or demolition, and provided that the building(s) as reconstructed shall be located on the footprint of the nonconforming structure and rebuilt to an extent only as great in volume or area as the original nonconforming structure unless a larger volume or area or different footprint is authorized by special permit [sic] from the Board of Appeals. . . . .

14. The Bylaws define "dwelling" as "[a] building or part thereof designed, erected and used for continuous and permanent habitation for one or more families or individuals. A dwelling does not include a vessel."

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Those applying for permits affecting structures or uses that don't comply with current zoning laws bear the burden of proving their entitlement to the permit. See Cape Resorts Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 212 (1982). Use of 120 Front Street for a two-family residence lawfully began before Marion adopted its Zoning Bylaws, and hence that use was a lawfully nonconforming one for purposes of both c. 40A, § 6 and Marion's Zoning Bylaws. The LLC thus has the burden of proving that it deserved a building permit to raze the Old House and build the New House.

The LLC first contends that it merited a building permit because the asserted non-use of the Old House for more than two years – something that the Board concluded caused the lapse of the LLC's right to resume use of 120 Front Street for two-family purposes, according to § 6.1.6 of the Zoning Bylaws – is a red herring. In the LLC's view, the first sentence of § 6.1.1 of the Bylaws (the "First Sentence") offers permanent protection for the two-family use of 120 Front Street. One determines the meaning of any zoning bylaw "'by the ordinary principles of statutory construction,'" Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012), quoting Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (2011), but the LLC relies exclusively on one such principle: when the meaning of a statute's "language is plain and unambiguous, we enforce the statute according to its plain wording 'unless a literal construction would yield an absurd or unworkable result.'" Shirley, 461 Mass. at 477, quoting Adoption of Daisy, 460 Mass. 72 , 76 (2011).

The First Sentence reads: "No provision of this Zoning Bylaw shall apply to structures or uses lawfully in existence . . . before the first publication of notice of the public hearing required by M.G.L., c. 40A, s. 5." The LLC argues that the First Sentence means what it says: "[n]o provision" of the Bylaws applies to the preexisting, lawful use of 120 Front Street as a two-family residence.

The LLC buttresses its plain-language reading of the First Sentence with a public-policy argument: the LLC claims that the First Sentence manifests the Town of Marion's lawful decision to provide to preexisting structures and uses more generous protections from zoning bylaws than those found in c. 40A, § 6. The LLC cites as support for a municipality's powers to do that three cases, Marinelli v. Board of Appeals of Stoughton, 65 Mass. App. Ct. 902 (2005), Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266 (2008), and Kneer v. Zoning Bd. of Appeals of Norfolk, 93 Mass. App. Ct. 548 (2018).

The LLC is mistaken both as to how generous municipalities may be with "grandfathering" uses and as to how one should interpret § 6.1.1. Marinelli, Carabetta, and Kneer involved municipal zoning regulations that set minimum lot sizes. Reasoning that since c. 40A doesn't mandate that a parcel be any particular size, the court in Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 , 154 (1981), held (and Marinelli, Carabetta, and Kneer reaffirm) that a municipality legitimately may decide to give "generous grandfathering protection" to undersized lots. See, for example, Kneer, 93 Mass. App. Ct. at 553.

Municipalities don't enjoy the same flexibility when it comes to nonconforming uses and structures. Chapter 40A, § 6 expressly addresses those types of nonconformities. The statute provides that a zoning by-law "may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." The courts have construed this part of § 6 as creating a state-wide, statutory floor pertaining to "abandoned" structures and uses. See, for example, Dial Away Co., Inc. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 171-172 (1996); Chiaraluce v. Zoning Bd. of Appeals of Wareham, 89 Mass. App. Ct. 290 , 294- 295 (2016). (A 2016 amendment to c. 40A, § 7 may have raised that floor with respect to abandoned structures, see St. 2016, c. 184, § 1, but this Court needn't address that issue in this case: no one claims that the Old House is a nonconforming structure.) Section 6 allows municipalities to give more generous protections to nonconforming uses and structures only when the municipality exercises its rights to regulate properties "not used for a period of two years or more." See Chiaraluce, 89 Mass. App. Ct. at 293-294; Fitch v. Sepucha, 26 LCR 83 , 86-87 (2018), aff'd 94 Mass. App. Ct. 1120 (2019). Section 6's treatment of nonconforming uses manifests the public-policy objective of eliminating, eventually, all such nonconformities. See Dial Away, 41 Mass. App. Ct. at 170; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 358 (2001). There's no similar public policy with respect to eliminating small lots, which further explains and distinguishes the generosity of the holdings in Marinelli, Carabetta, and Kneer.

The Town of Marion thus has no power to "permanently grandfather" nonconforming uses: c. 40A, § 6 mandates that if one abandons a nonconforming use, one can't resume it. Because the LLC's reading of the First Sentence would lead to an unlawful result under c. 40A, a second canon of statutory construction comes into play: courts should construe statutes so as to avoid a conflict with constitutions and other sources of governmental authority (in this case, the source of the Town's authority to adopt zoning bylaws, c. 40A). See Springfield Preservation Trust, Inc. v. Springfield Library and Museums Ass'n, Inc., 447 Mass. 408 , 422-423 (2006) ("Just as we interpret statutes in a manner that avoids rendering them unconstitutional, . . . we should interpret an ambiguous ordinance in a manner that avoids violating its enabling statute."). This Court can't – and won't – interpret the First Sentence in a manner that leads to the conclusion that Marion has rebelled against c. 40A, § 6.

The LLC's insistence on reading the First Sentence in isolation also runs afoul of another principle of statutory construction, that the courts must "'endeavor to interpret a statute to give effect "to all its provisions, so that no part will be inoperative or superfluous."'" Shirley, 461 Mass. at 477, quoting Connors v. Annino, 460 Mass. 790 , 796 (2011). Interpreting the First Sentence as permanently grandfathering all lawful pre-existing nonconforming uses and structures would make several parts of § 6.1 of the Bylaws inoperative, and still others superfluous. The LLC's reading of the First Sentence would render superfluous the opening of the Second Sentence of § 6.1.1 ("Such prior, lawfully existing nonconforming uses and structures may continue. . ."), and make the rest of the second sentence ("provided that no modification of the use or structure is accomplished, unless authorized hereunder") inoperative. And if the "provided-that" clause becomes inoperative, §§ 6.1.5 and 6.1.7 of the Bylaws become inoperative too. The LLC's reading of the First Sentence also makes § 6.1.6 of the Bylaws a nullity (which, of course, is the LLC's objective).

The better reading of § 6.1.1 and its two Sentences is that they cover two distinct periods. The First Sentence provides that a zoning bylaw won't apply retroactively to "structures or uses lawfully in existence or lawfully begun, or to a building or Special Permit issued[,]" before the first publication of a notice of the public hearing required under c. 40A, § 5 in advance of a municipality's adoption of any zoning bylaw or amendment. The First Sentence couldn't provide otherwise: c. 40A, § 6 draws the same line (and goes further: zoning bylaws "shall apply" to all sorts of things "after the first notice of public hearing . . ."). The Second Sentence governs a different period, that after the Town of Marion adopts a zoning bylaw: "Such prior, lawfully existing nonconforming uses and structures may continue," on one condition: "that no modification of the use or structure is accomplished, unless authorized hereunder." This reading of § 6.1.1 allows every part of § 6.1 of the Bylaws to operate, including § 6.1.6.

Section 6.1.6 thus is not a red herring in this or any other case. And where (as here) a town has adopted a zoning bylaw that employs both the "abandonment" and the "not-used-for-two-years-or-more" option allowed under c.40A, § 6, those tests are disjunctive: failing one is as fatal to a permit application as failing both. See Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 424 Mass. 404 , 406 (1997). The "not-used" test "contemplates 'a simple cessation of a nonconforming use for a period of at least two years,'" with no regard to whether the cessation was intentional or unintentional. Town of Orange v. Shay, 68 Mass. App. Ct. 358 , 363 (2007), quoting Bartlett v. Board of Appeals of Lakeville¸ 23 Mass. App. Ct. 664 , 669 (1987).

The questions of use and cessation of use are ones of fact. See Town of Orange, 68 Mass. App. Ct. at 361-362; Bartlett, 23 Mass. App. Ct. at 668-670. The facts of this case show that 120 Front Street hasn't been used for two-family purposes since the November 2010 fire. There's a simple explanation for that: owing to the lack of a certificate of occupancy, no one has been allowed to inhabit the Old House, the only structure that's been present on 120 Front Street since the fire. 120 Front Street thus lost its ability to continue to host a nonconforming two-family residence in November 2012, nearly a year before the LLC bought 120 Front Street.

There could be instances where, owing to the way a zoning bylaw defines residential uses, a preexisting nonconforming residence could remain in "use" while it undergoes renovations. That possibility was present in Corbett v. Chin, 23 LCR 677 (2015) (Speicher, J.), where a local bylaw defined both single-family and two-family "dwellings" only as buildings "designed for occupancy" by families. Actual occupation wasn't required. See id. at 679-680. Marion's Bylaws are stricter: they define "dwelling" as "[a] building or part thereof designed, erected and used for continuous and permanent habitation for one or more families or individuals." (Emphasis added.) That definition, coupled with § 6.1.6 of the Bylaws, forces Marion residents who are trying to perpetuate nonconforming residential uses to resume that use within two years of the beginning of any period of non-occupancy.

Two cases cited by the LLC, Cox v. Davis, 25 LCR 67 (2017) (Long, J.), and Fitch, 26 LCR at 87, are not to the contrary. Cox involved a question of whether a nonconforming structure (not a use) had been "abandoned" for purposes of a zoning bylaw that provided more generous protections to nonconforming structures and uses than do Marion's Bylaws. Fitch concerned a nonconforming structure and use that had ceased from time to time, but never for more than two years. The structure in Fitch also never experienced a period during which, unlike here, residential use of the structure was forbidden pending receipt of a certificate of occupancy.

This Court thus will DISMISS the LLC's appeal of the Board's March 29, 2018 decision in its Case No. 744. Judgment to enter accordingly.