Cases in which
the court must determine whether use of a property is consistent with an
alleged preexisting, nonconforming use are “often heavily fact-dependent.” Nevertheless, when the undisputed facts
clearly indicate a failure to satisfy at least one of the prongs of the
so-called Powers test, the court may determine the question as a matter of
law. In a recent case that our office
litigated in the Land Court, HAYR,
LLC v. Nigosian, No. 15 MISC 000103 (HPS), No. 15 MISC 000242 (HPS), 2017 WL
3426681 (Mass. Land Ct. Aug. 9, 2017) (Speicher, J.), this was the
precise issue before the Court. In its
detailed analysis, the Land Court ultimately held that the Defendants, Dominic
Murgo and PJM Family Enterprises LLC (collectively “PJM”), had “failed to
indicate that any evidence will be forthcoming at trial tending to show that
their present nonconforming use is not a change or substantial extension of the
use protected under G.L. c. 40A,
§ 6.”
The Plaintiff,
HAYR, LLC (“HAYR”), is undertaking a development of a large residential
subdivision in the Town of Millbury, which is located directly to the south of
Worcester. HAYR’s property is not
located far from Route 20 in Worcester, and the property immediately adjacent
to its northwesterly property boundary, which is owned by PJM, has frontage on
Route 20. While PJM’s property is nearly
6 acres in size, it is only the front portion that is located in Worcester; the
rear portion, consisting of approximately three acres and lacking street
frontage, is located in Millbury’s Suburban IV Zoning District. PJM was using the property to store
approximately 40 live-floor trailers, which it employs to haul municipal solid
waste. As HAYR utilized its neighboring
property, it began to experience harms associated with significant truck noise
and odors.
Experiencing
impacts from PJM’s use of its property, HAYR investigated to determine whether
the use thereof was lawful. HAYR’s
research revealed that use of the property as a trucking terminal was not
permissible in Millbury’s Suburban IV Zoning District and sought zoning relief. Millbury’s Zoning Enforcement Officer
responded to the request, issuing a cease and desist order to PJM. PJM subsequently appealed the cease and
desist order to the Board of Appeals who rendered two decisions – first, a
decision purporting to grant a variance to authorize the ongoing use of the PJM
property as a trucking terminal; and second, a corrected decision purporting to
overturn the cease and desist order and finding that the use of the property as
a truck terminal had existed since the mid-1970s, was preexisting,
nonconforming, and could be continued as a matter of right. HAYR appealed both Board of Appeals decisions
to the Land Court.
As a preliminary
matter, HAYR sought to identify the effective date of the zoning bylaw that
rendered PJM’s use of its property lawfully preexisting, nonconforming. The Board of Appeals had apparently acted
upon the belief that the relevant date was April 1981. In conducting discovery, HAYR obtained all
the zoning amendments and zoning maps relevant to the Suburban IV District from
Millbury. Those documents revealed that,
since the initial adoption of the town’s zoning bylaw in 1957, the use of PJM’s
property as a trucking terminal and/or as a contractor’s yard had never been
permissible in the Suburban IV District.
This meant that, in order for PJM to establish that its use was
preexisting, nonconforming, it would need to trace its use back to the
mid-1950s, rather than the mid-1970s.
After
identifying the effective date of the applicable zoning bylaw, HAYR moved for
summary judgment on the basis that, on the undisputed facts in the record, PJM
would be unable to satisfy its burden at trial to satisfy the Powers test. Powers sets
forth the standard for determining whether a preexisting, nonconforming use is
consistent with the use being undertaken on a property prior to a change in
zoning and, therefore, may continue. “A
change that is so substantial either in degree or physical expansion so as to
constitute, in effect, a different use, will be determined to be ‘different in
kind’ in its effect on the neighborhood, and therefore not entitled to § 6
protection,”
Viewing the
summary judgment record in the light most favorable to PJM, the non-moving
party, the Court performed an analysis to determine whether PJM’s use was
consistent with an apparent gasoline filling service use that had been
undertaken on the Worcester portion of the PJM property in the mid-1950s.
First, the Court
analyzed whether there was a difference in the quality, character, and degree
of the use. As part of its inquiry, the
Court noted that “an expansion of the physical area in which a use takes place
will typically fail to meet these criteria”.
In performing its analysis, the Court (and the parties) relied heavily
upon stipulated aerial photographs of the subject property. Such aerials, which dated back to 1938,
clearly and indisputably demonstrated a significant expansion and change in the
use of the property from the mid-1950s to present day. As noted by the Court in is decision, the
extent of clearing as of 1957 had seen “a pronounced physical expansion” to the
present day, necessitating “a finding of change or substantial extension of the
degree of use as a matter of law.” (emphasis
added)
Second, the
Court determined that the current use of the property by PJM did not reflect
the nature and purpose of its prior use.
HAYR contended that, when zoning was adopted in Millbury in 1957, the
site was not used as a truck terminal, construction materials storage yard, or
anything remotely similar. While PJM
countered this contention, it relied upon an unverified report. Further, the Court concluded that, even if it
had considered the report, PJM would have fared no better. “A small filling station is no more a
cognizable predecessor to a large truck terminal for § 6 purposes than a tailor
shop doing some cleaning of clothes is to a large dry cleaning plant.”
Accordingly, in
light of the foregoing determinations, the Court found and ruled that “the
defendants’ current use of the entire Locus as a truck terminal for forty
live-floor trailers that transport municipal waste, and storage of other
construction vehicles and construction materials, is different in purpose and
nature from a use of the property as a gasoline filling station on a small
portion of the Locus. Furthermore, the
exponential physical expansion of the area occupied would render the current
use different in kind in any event.”
While this
decision is consistent with previous cases discussing the inquiry to be
undertaken to determine whether there has been an unlawful change to a
preexisting, nonconforming use, it nonetheless sheds light on the importance of
using the tools available in discovery to assist in streamlining a case. Although it was not HAYR’s burden to
establish that PJM’s use of its property was no longer protected as a
preexisting, nonconforming use (instead, it is the party claiming protected
status as a preexisting, nonconforming use that must prove grandfathering protection,
HAYR nonetheless undertook discovery on this issue to identify whether PJM
would be able to satisfy its burden.
This investigation revealed that the presumed effective date of the
zoning bylaw differed substantially from the actual effective date, and PJM had
produced no evidence that would enable it to establish a consistent use dating
back to the mid-1950s. It also enabled
HAYR to identify the significance of the aerial photographs and the role that
they ultimately played in a favorable decision.
Kim Bielan is an
associate in the litigation and zoning and land use departments of the
Braintree-based firm of Moriarty, Troyer & Malloy, LLC. She
represents a variety of clients, including condominium associations,
developers, and individual homeowners. Kim’s practice focuses primarily on real
estate litigation, with an emphasis on zoning and land use matters. She also
represents clients on a variety of real estate permitting matters and
frequently appears before municipal boards to permit projects and to represent
the interests of abutters and neighborhood groups; she can be contacted by
email at kbielan@lawmtm.com.
