RONALD R. GOMES, Administrator of the Estate of Manuel L. Gomes, and GERRI GONSALVES, Administratrix of the Estate of Frank R Gomes v. WALTER COLLINS, ET AL.

Introduction

This action concerns Lots 18 and 33 as depicted on Assessors Map 19 in the town of Carver, Massachusetts. At the time of his passing on November 5, 1962, Manuel L. Gomes was the owner of Lot 33, a landlocked parcel which has never been improved. [Note 1] The plaintiff Ronald R. Gomes currently serves as the Administrator of the Estate of Manuel L. Gomes. [Note 2]

At the time of his death on October 18, 1988, Frank R. Gomes was the owner of Lot 18. [Note 3] The plaintiff Gerri Gonsalves currently serves as the Administratrix of the Estate of Frank R. Gomes. [Note 4] The plaintiffs initiated this action pursuant to G.L. c. 40A, s. 17 in order to challenge an adverse decision of the Board of Appeals for the Town of Carver (Board). For the reasons that follow, this court will affirm the Board’s decision.

Background

On February 17, 2010, the plaintiffs entered into a purchase and sale agreement with Priscilla Burns (Burns) of Carver, Massachusetts, who wished to “raze the single family dwelling presently located on Lot 18 and replace it with a new single-family dwelling to be built on Lot 33.” [Note 5] To this end, Burns filed an application with the Board “seek[ing] a variance and / or special permit” and citing a “lack of street frontage” in connection with her request. [Note 6] Lot 18 consists of approximately 27,707 square feet with fifty feet of frontage on Hines Avenue, a private way within the town of Carver.

By deed of June 2, 1930 recorded with the Plymouth County Registry of Deeds at Book 1594, Page 437, Manuel L. Gomes and Elsie M. Gomes, husband and wife as tenants by the entirety, acquired title to a parcel of land within the town of Carver, designated on Carver Assessors’ Map 19 as Lot 33 and containing approximately 42,660 square feet. [Note 7] Thereafter, with the passing of his spouse on December 5, 1940, Manuel L. Gomes (Manuel Gomes) acquired the entire fee in the property. [Note 8] Following his death on November 5, 1962, plaintiff Ronald R. Gomes was appointed administrator of his estate. [Note 9]

By deed dated May 9, 1927 and recorded with the Registry at Book 1528, Page 536, Manuel L. Gomes and Elsie M. Gomes acquired title to adjoining parcels in the town of Carver depicted as Lots 18 and 34 on Assessors Map 19. These lots are currently shown as Lot 18 on the said Assessors Map. [Note 10] At the time of acquisition, Lot 18 contained a one story, four room cottage, measuring 24 feet by 26 feet that had been constructed in or about 1923. [Note 11] The said Lot 18 consists of approximately 27,707 square feet with frontage of fifty feet on Hines Avenue, a private way. [Note 12]

With the passing of his wife, Manuel L. Gomes acquired title to Lot 18 in his sole capacity. On May 5, 1962 he conveyed that lot to Frank R. Gomes by deed recorded with the Registry at Book 2934, Page 249. [Note 13]

“At that time, the dwelling on Lot 18 was occupied by grandchildren of Manuel Gomes and was served by utilities. [Note 14] On July 11, 1963, the town of Carver adopted its zoning bylaws for the first time. [Note 15] As of that date the dwelling on Lot 18 was occupied by the grandchildren of Manuel Gomes.” [Note 16] However, “[s]ince November 1963, the structure has been uninhabited.” [Note 17]

Pursuant to the newly adopted zoning bylaw, buildable lots were required to have a minimum lot size of 22,500 square feet with at least 150 feet of frontage. [Note 18] “The adoption of zoning bylaws in 1963 rendered both Lot 18 and Lot 33 nonconforming lots inasmuch as they lacked sufficient frontage.” [Note 19]

A “Lot” is defined in the town Bylaw as a “a single area of land in one ownership defined by metes and bounds or boundary lines in a recorded deed or recorded plan...” Currently, Lot 18 is located within the Village Zoning District while Lot 33 is in the Residential Agricultural Zoning District (RA District). The Village Zoning District (Village District) requires a minimum lot size of 30,000 square feet and minimum frontage of 100 feet. The RA District requires 60,000 square feet, 150 feet of frontage and a side yard setback of 50 feet. [Note 20]

Lacking the requisite frontage and lot area, both Lots 18 and 33 are currently nonconforming. Additionally, the structure on Lot 18 is nonconforming as to sideyard setback. [Note 21] Both parties acknowledge that “[t]he structure is uninhabitable in its present condition.” [Note 22] It has likely been so for many years. In this regard, assessors’ records dating from 1977 “indicate that at the time the structure had no plumbing, was without windows or doors, and its interior was gutted. They also describe the structure as structurally and economically obsolete.” Since 1991, Lot 18 has been assessed as an unimproved parcel. [Note 23]

On October 18, 1988 “ Frank R. Gomes died intestate and seized of Lot 18…” [Note 24] Title to that Lot currently resides in his heirs. [Note 25] Plaintiff Gerri Gonsalves serves as administratrix of the estate. [Note 26]

The plaintiffs, on February 17, 2010, entered into a purchase and sale agreement with Burns to convey their respective lots to her. It is apparently Burns intent that the lots will be together combined in a single owner. It is anticipated that she will “raze the [existing 624 square foot] structure and construct a new 1,740 square foot single family dwelling on Lot 33.” [Note 27]

The parcels, even if combined, “will remain nonconforming with regard to frontage. However, the proposed 1,740 square foot single family dwelling would conform to all dimensional requirements in the [RA District].” [Note 28] Thus, Lot 18 possesses fifty feet of frontage while the RA District in which it resides, has a minimum frontage requirement of 100 feet. For its part, Lot 33 has no frontage at all, while the Village District in which it is located, has a minimum frontage requirement of 150 feet.

Burns applied to the Board of Appeals seeking a “variance and/or special permit.” She cited a “lack of frontage” as the reason for her request. [Note 29] At the request of Burns’ attorney, the Board voted to defer any action on the application and to remand the matter to the Building Commissioner (Commissioner). The Commissioner determined that Burns’ was not entitled to a Building Permit as of right, but rather would require a special permit. [Note 30]

On November 21, 2010, Burns filed an application with the Board in which she appealed the Commissioner’s refusal to issue a Building Permit as of right. In the alternative however, she sought a special permit for the construction of a single family dwelling. [Note 31] The application was assigned a new case number 10-938, distinguishing it from the earlier case numbered 10-932.

After publication and notice on case numbered 10-938, the Board, on March 10, 2011, voted to deny Burns’ appeal and to deny, as well, the requested special permit. [Note 32]

The instant appeal followed on April 1, 2011. The matter has been presented to the court on a case stated basis with an Agreed Statement of Facts, together with Exhibits which were similarly agreed upon by the parties.

Discussion

In their complaint, the plaintiffs request that the decision of the Board be annulled. They argue in this regard that “[t]he decision of the Zoning Board was contrary to law and was therefore arbitrary, capricious, whimsical, and in excess of authority of the Zoning Board.” [Note 33]

In their brief, the plaintiffs argue at the outset, that they are entitled to a building permit as of right. In this regard, they cite G.L. c. 40A, s. 6, par. 1 which provides in pertinent part, as follows:

Except as hereinafter provided, a zoning…by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such…by- law…, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of such of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure…. (emphasis supplied) [Note 34]

Plaintiffs next cite “the applicable bylaw standard in the case at bar,” Section 2254 of the Bylaw which mirrors the foregoing italicized language of G.L. C. 40A, s. 6. The Bylaw provides in relevant part, as follows:

2254. Nonconforming Single and Two-Family Residential Structures.

Nonconforming single and two family residential structures may be reconstructed, extended, altered, or structurally changed upon a determination by the Zoning Enforcement Officer that such proposed reconstruction, extension, alteration, or change does not increase the nonconforming nature of said structure and the issuance of a building permit, where applicable… (emphasis supplied) [Note 35]

Plaintiff’s argument is premised largely on the notion that the existing structure has been, and remains, a single family residential structure or dwelling which Ms. Burns wishes to reconstruct on Lot 33, after razing the existing structure on Lot 18. [Note 36]

In point of fact, the structure lacks those basic elements that would permit one to characterize it as a residential structure. It is, at best, a modestly sized, deteriorating shell with a tree growing up through the roof and through the lone front dormer. The front portion of that roof and the dormer, which are readily visible in at least two of the photographic exhibits, are in a state of near collapse [Note 37] appearing to be held up by the tree, thereby leaving the structure entirely open to the elements. The windows and doors are gone, having been boarded up. The photographic exhibits indicate that the plastered ceilings are largely gone; the wall studs are plainly visible as well.

Moreover, the structure is devoid of those critical elements that one would ordinarily associate with a residence or single family dwelling. In this regard, the photographs disclose the that there are no kitchen or sanitary facilities, no sleeping accommodations, no plumbing or electrical service.

This court is satisfied, therefore, that the “structure” at issue has not at any time relevant hereto, constituted a single family residential structure for purposes G.L. c. 40A, s. 6 or of section 2254 of the Bylaw. By no means is it suitable for occupancy or human habitation.

It is not at all clear, moreover, that the proposal constitutes a “reconstruction” as that term is used in the Bylaw or in section 6 of chapter 40A. In the case of Glidden v. Zoning Board of Appeals of Nantucket, 77 Mass. App. Ct. 403 , 408 (2010), the Court’s observed that “ [t]here is nothing implicit in the meaning of the term [“reconstruction”], or its use in the bylaw, that excludes reconstructing a structure at a different site.” It seems clear, given the facts of the Glidden case that when using the term “site”, the Glidden Court was speaking not of a different lot, but of a different location or site on the same lot. In the case at bar, however, the plaintiffs herein anticipate the creation of a new lot out of two currently nonconforming lots. However, the new lot will remain nonconforming owing to the lack of adequate frontage. [Note 38] In no event would the purported reconstruction take place at a different location on the same lot.

Notwithstanding, the plaintiffs’ essential argument is twofold. They assert, in the first instance, that the Burns’ proposal amounts to a reconstruction of an existing nonconforming single family residential structure, and secondly, that the proposed reconstruction would not increase the nonconforming nature of the “said structure.” In support of the latter argument, the plaintiffs state that the existing structure on Lot 18 is nonconforming as to side yard setback. They argue, however, that the proposed structure to be built on Lot 33, as currently existing, will be conforming as to setback requirements. The structure itself, would no longer be located in the Village District, but would be built within the RA District. [Note 39] That District has a minimum side yard setback requirement of 30 feet with which the proposed structure would conform.

Further, as to frontage, both Lot 18 and Lot 33 are nonconforming. Lot 18 has 50 feet of frontage while Lot 33 has none. The RA District in which the proposed structure would be built has a 150 feet frontage requirement. In this regard, Ms. Burns has acknowledged that the proposed “new house will be constructed solely on Lot 33.” [Note 40] Lot 18 has 50 feet of frontage in the Village District which has a frontage requirement of 100 feet. The plaintiffs argue therefore, that the “combined tract will be no more nonconforming with respect to frontage than Lot 18 presently is: “The frontage of the combined tract would remain the same as the frontage of Lot 18: 50 feet.” [Note 41]

Although the town of Carver concedes that Lot 18 and the structure thereon were lawful and nonconforming when the Bylaw was first adopted in 1963, the town now contends that Lot 18 no longer meets the requirements for the structure to be lawful and nonconforming. A lot is exempted from the zoning restrictions contained in a bylaw if it is not held in common ownership, conformed to the then-existing requirements, and has at least 5,000 square feet of area and 50 feet of frontage. G.L. c. 40, s. 6, para. 4. If so exempt, the structure is lawfully nonconforming, and may be subject to Section 2254 of the Bylaw, quoted supra. [Note 42]

Chapter 40A, section 6, para. 3 of the General Laws provides that a “by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.”

In the case of Town of Orange v. Shay, 68 Mass. App. Ct. 358 (2007) the Court made the following pertinent observation:

Prior to the enactment of the Zoning Act, G.L. c. 40A in 1975, our case law construed the terms “abandoned” and “discontinued” as being synonymous. Whether a particular zoning ordinance provided for extinguishment of nonconforming uses by use of the terms “abandoned” and “discontinued” was of no moment since the terms were deemed interchangeable…. Since 1975, however, the zoning Act has permitted municipalities to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more…. In so doing, the Legislature provided two separate avenues by which prior nonconforming uses can be extinguished: (a) abandonment; and (b) a period of nonuse of two or more years. The two concepts were thus no longer interchangeable. Id. at 363.

Abandonment requires “the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment.” Id.

While abandonment can happen “momentarily, without the lapse of any stated period of time,” the phrase “not used” as the legislature employed it, contemplates “a simple cessation of a nonconforming use for a period of at least two years. Id.

Where “the lapse of time following the [cessation of the nonconforming use].. is so significant that abandonment exists as a matter of law…[,] evidence of things done or not done… carries the implication of abandonment..[and] [s]upports a finding of intent, whatever the avowed state of mind of the owner…. Id. at 364. (emphasis supplied) (internal citations omitted)

The Orange Court concluded that cessation of the nonconforming use, “and the passage of over forty years carries a clear implication of abandonment.”

Section 2255 of the Bylaw provides as follows:

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 by-law. [Note 43] (emphasis supplied)

The structure at issue, is plainly nonconforming. [Note 44] Thus, the town of Carver has elected to regulate nonconforming uses and structures which have been either abandoned or not used for a period of two years or more. In such event, the structure loses the protection enjoyed by it as preexisting and nonconforming. In the case of Carver, the structure in question becomes subject to all provisions of the Bylaw including the frontage requirements.

A “structure,” is defined under ARTICLE VI. DEFINITIONS of the Bylaw as “anything constructed or erected, the use of which requires fixed location on the ground, including, but not limited to buildings… .” [Note 45]

The town argues that Lot 18 is subject to all the provisions of the present Bylaw because the structure is a residential building which was either abandoned, or in the alternative, has not been used for more than two years. See Defendants’ Memorandum of Law on the Parties’ Agreed Statement of Facts and Exhibits, at 6. If this court were to find that the structure was either abandoned or not used for a period of two years, then the lots will be subject to the present requirements of the Bylaw, including the frontage requirement. In such event, our inquiry need proceed no further.

Abandonment of a Nonconforming Structure

Although a definition of “abandoned” is provided in neither the Bylaw nor G.L. c. 40A, there is substantial decisional law on point. The case of Derby Refining. Co. v. Chelsea, 407 Mass. 703 , 708 (1990) is instructive in this regard.

In the Derby case, Texaco Oil Refining and Marketing, Inc.(Texaco) discontinued operations at a petroleum storage facility in 1983, due to changing market conditions. In so doing, it proceeded to “mothball” its existing facility. This process entailed pumping out and cleaning petroleum storage tanks, filling them with preservative and sealing them. While Texaco closed its business office it “continued to heat the building, and hired a security firm to check the premises.” Thereafter, it commenced marketing efforts, all the while maintaining its flammable storage licenses, until selling the facility on January 15, 1986 to Derby Refining Company. [Note 46] The question soon arose whether the use of the petroleum facility had been abandoned by Texaco. In concluding that there had been no such abandonment, the Derby Court observed as follows:

Mere nonuse or sale of property does not, by itself, constitute an abandonment. Additional facts must be present before a finding of abandonment is warranted. ….The fact that Texaco “mothballed” the facility constitutes evidence of nonuse, but it was not enough by itself to require a finding of abandonment. We agree with the judge that the reasonable inference to be drawn from the manner in which Texaco shut down the facility is precisely the opposite of abandonment---that Texaco intended to preserve the facility in good condition for a profitable resale…. [See also] Texaco’s voluntary action of diligently renewing its flammable storage licenses in each year preceding the sale to Derby….There are also no clear indicia of abandonment. For example, the property was not left unprotected or unsecured… and no buildings were demolished. (emphasis supplied) (internal citations omitted) [Note 47]

The Court observed, as well, “that Texaco’s efforts, together with the affirmative steps taken to market the facility as a petroleum storage terminal, “are illustrative of Texaco’s attempt to maintain the integrity of the premises as a marine distributive facility… In short, even if Texaco had no further use of the locus for its corporate purposes, it did not intend to surrender such use.” [Note 48]

This court is of the view, therefore, that evidence of preservation and maintenance may be seen as inconsistent with an intent to abandon. On the other hand, evidence that a property has not been maintained, secured or protected may be viewed as consistent with, if not indicative of, an intent to abandon. In any event, “[a]bandonment is primarily a question of fact.” (quoting Paul v. Selectman of Scituate, 301 Mass. 365 , 370 (1938)). [Note 49]

A significant factor in determining whether an abandonment has occurred, relates to the period of nonuse or abandonment. “[L]apse of time is not [in and of itself] the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use.” Dobbs v. Bd. of Appeals of Northampton, 339 Mass. 684 , 687 (1959).

Courts have even held that a significant lapse of time following a demolition or nonuse may establish the existence of abandonment as a “matter of law.” Dial Away Co., Inc. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 172 (1996) (finding that a twenty-three year lapse of time following a demolition of a structure constituted abandonment). While the Dial Away Co. court addressed a situation in which demolition had occurred, it cited numerous cases in which there was a time lapse of nonconforming use for its “abandonment as a matter of law” principle. See, e.g., Mioduszewski v. Saugus, 337 Mass. 140 , 145 (1958) (indicating that failure to exercise a nonconforming use for a period of four years “may well have fatally interrupted” said use). But while a lapse of time has proved significant in some cases, “an abandonment is something that can [also] happen momentarily, without the lapse of any stated period of time.” Bartlett v. Bd. of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 669 (1987) (citing Dawson v. Bd. of Appeals of Bourne, 18 Mass. App. Ct. 962 , 963 (1984)).

The plaintiff bears “the burdens of proof and persuasion on the questions of intent and inability as they relate[] to a possible abandonment.” Id. “[A]n owner can by his diligent efforts have some control over a period of vacancy and if he allows an extended time to elapse with only desultory and equivocal action in the meantime, he runs the risk of a sustainable finding of abandonment and discontinuance.” Dobbs v. Bd. of Appeals of Northampton, 339 Mass. at 687. For example, a judge’s decision that attached “primary importance to the period of more than ten years during which the disputed units had not been used,” and found that the nonuse of the dwelling units resulted in an abandonment of the nonconforming use, was upheld on appeal. See Bartlett, 23 Mass. App. Ct. at 664.

Plaintiffs cite the Massachusetts Zoning Manual to support their contention that abandonment is only applicable to nonconforming uses, not nonconforming structures. Plaintiffs’ Brief, at 6. The Zoning Manual states that, “The application of the abandonment principle to nonconforming structures is problematic. It is difficult to see how a standing, nonconforming structure, even if vacant, could be abandoned because its mere presence evidences its continued existence.” Massachusetts Zoning Manual, s. 6.9.

This argument fails to account for the explicit use of the word “structure” in the provisions of both the G.L. c. 40A and the relevant Bylaw. It fails too, to consider the applicable case law discussed supra holding that nonuse of a structure may constitute an abandonment.

Here, the plaintiffs have failed to carry their burden of proof. It is the view of this court the facts as presented are demonstrative of a clear intent to abandon the structure. See Derby Ref. Co. v. Chelsea, 407 Mass. at 708. It is undisputed that the structure on Lot 18 was no longer maintained, used, or inhabited following November 1963. See Agreed Statement of Facts, at 3. “Assessors’ records from 1977 indicate that at that time the structure had no plumbing, was without windows or doors, and its interior was gutted. They also describe the structure as structurally and economically obsolete.” Id. at 4. Lot 18 was no longer assessed as improved from 1991 to the present, and it is undisputed that the “structure is uninhabitable in its present condition.” Id. Thus, contrary to the facts in Derby Refining, no effort whatever has been made to preserve the Lot 18 structure for habitation or residential purposes. Indeed, no effort was made to preserve the structure at all. As has been amply documented herein, the property as presently configured is wholly unusable for any purpose, having been rendered unfit for human habitation.

Predicated upon the recitations in the Agreed Statement, as well as the advanced level of deterioration, one may reasonably infer, and I do so infer, that the current situation has existed for an extensive, sustained period of time. This court is satisfied therefore, that the nonconforming structure has, as a matter of law, long since been abandoned and allowed to deteriorate, to the point where components of the structure have literally collapsed. As has been observed, “[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.” [Note 50] (emphasis added) See also Dial Away Co., Inc., 41 Mass. App. Ct. at 172 (finding abandonment as a “matter of law” after a lapse of twenty-three years).

Nonuse of Structure

Even if this court were to resist characterizing the property as “abandoned,” there can be no dispute that no one has utilized the structure for residential, or likely any other purpose, [Note 51] for over forty-six years, i.e. a time period that plainly and substantially exceeds the two year period recited in the Bylaw.

The Bartlett case is particularly instructive when construing such a bylaw provision concerning nonuse. See generally Bartlett, 23 Mass. App. Ct. at 669-71. In Bartlett, the Court indicated that in G.L. c. 40A, s. 6, para. 3, “the Legislature has authorized the use of an objective standard which is easily understood by the public and easily administered by building inspectors and boards of appeal.” Id. at 669 (emphasis added). The nonuse standard does not involve an inquiry into the intent of the parties—it does not “embrace any concept of specific intent on the part of the person who discontinues [the use of something].” Id. at 669 n.9. The Bartlett Court continued “We think the Legislature … intended to authorize cities and towns to extinguish otherwise protected nonconforming uses if particular premises which are not in fact used for the protected purposes for a minimum of two years.” Id. (concluding that the Lakeville board of appeals properly refused a building permit when two of three dwelling units had not been used for more than two years). Accepting, arguendo, the notion that the nonconforming structure still exists, [Note 52] it is the use of the structure that determines whether there has been an abandonment or discontinuance of the structure—not the mere continued existence of the structure. Defendant’s Memorandum of Law on the Parties’ Agreed Statement of Facts and Exhibits, at 7; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 (2001).

Here, it is undisputed that the structure has been uninhabited since November 1963 and is in fact uninhabitable. See Agreed Statement of Facts, 3-4.

This court is satisfied therefore, that owing to abandonment and non-use, the said structure has long since surrendered its protected status under the Bylaw.

Conclusion

In view of the foregoing, this court concludes as follows: (a) that the structure at issue may not reasonably be characterized as a “single family residential dwelling for purposes of invoking the exceptions set forth in G.L. c. 40A, s. 6, para. 1 or in Section 2254 of the Carver Zoning Bylaw; (b) that however the structure may be characterized, it has long since been abandoned and not used for a period well in excess of two years as set forth in Section 2255 of the Carver Zoning Bylaw; [Note 53] (c) that having lost its “protected status… [it is] subject to all of the provisions of [the] zoning by-law” including those requiring adequate frontage; (d) that for purposes of G.L. c. 40A, s. 6 or Section 2254 of the Carver Zoning Bylaw, a reconstruction may occur at a different site on the same lot or parcel; however, it may not occur upon an entirely different lot or parcel; and (e) the plaintiffs’ proposal to demolish a nonconforming structure on a nonconforming lot and to erect a new structure on a different or resulting nonconforming lot, would require, under the circumstances pertaining herein, the grant of a variance.

Accordingly, it his hereby

ORDERED the decision of the Board of Appeals of the Town of Carver be, and hereby is, AFFIRMED. It is further

ORDERED that the plaintiffs’ complaint be, and hereby is, DISMISSED.

Judgment to issue accordingly,

SO ORDERED

By the Court (Grossman, J.)