Welch-Philippino v. Zoning Board of Appeals of Newburyport , 86 Mass. App. Ct. 258 ( 2014 )

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13-P-1586 Appeals Court
CYNTHIA WELCH-PHILIPPINO & another1 vs. ZONING BOARD OF APPEALS
OF NEWBURYPORT & others.2
No. 13-P-1586.
Suffolk. June 2, 2014. - September 9, 2014.
Present: Grasso, Vuono, & Rubin, JJ.
Zoning, Nonconforming use or structure, Special permit, By-law.
Civil action commenced in the Land Court Department on
April 7, 2011.
The case was heard by Alexander H. Sands, III, J.
Kevin W. Lawless for the plaintiff.
Ryan P. McManus (Diane C. Tillotson with him) for Port
Associates Limited Partnership & another.
GRASSO, J. Cynthia Welch-Philippino (Philippino) appeals
from a Land Court judgment determining that the planned
1
Anthony Philippino.
2
The city of Newburyport, Port Associates Limited
Partnership, and Whittier Health Network, Inc.
2
reconstruction of a nursing home (the project) by Port
Associates Limited Partnership and Whittier Health Network, Inc.
(the defendants), is permissible as of right under G. L. c. 40A,
§ 6. Philippino principally challenges the trial judge's ruling
that a dimensionally conforming commercial structure is not, by
virtue of its employment for a nonconforming use, a
nonconforming structure for purposes of the first sentence of
G. L. c. 40A, § 6, first par. We conclude, as did the trial
judge, that where the project does not work a "change or
substantial extension" (ibid.) of the preexisting nonconforming
commercial use, the reconstruction and replacement of the
existing dimensionally conforming structure with a new
dimensionally conforming structure is lawful as a matter of
right and not subject to the second sentence of G. L. c. 40A,
§ 6, which provides that preexisting nonconforming structures or
uses may only be extended or altered by special permit.
1. Background. The defendants' 100-bed nursing home
facility, built in 1968, is a dimensionally conforming
commercial structure situated on a large (5.5 acre) conforming
lot in a residential zone. Use of the facility as a nursing
home pre-dates the adoption of the Newburyport zoning ordinance,
and thus is a lawful preexisting nonconforming use. The
defendants plan to replace the old structure with a modernized
3
121-bed facility that will meet the dimensional requirements of
the current zoning ordinance.
The Newburyport zoning board of appeals (board) issued a
special permit that authorized the defendants to proceed with
the project, and abutters Philippino and her husband appealed
under G. L. c. 40A, § 17. After trial, a Land Court judge
concluded that the project (1) does not constitute a "change or
substantial extension" of the lawful preexisting nonconforming
commercial use, and (2) is therefore permissible as of right
under G. L. c. 40A, § 6, and not subject to the more restrictive
special permit requirements of the local zoning ordinance.3
On appeal from the judgment, Philippino's primary claim is
that a conforming structure used for a nonconforming purpose is
treated as a nonconforming structure under the first sentence of
G. L. c. 40A, § 6. Consequently, she argues, reconstruction and
replacement of such a structure is subject to the provisions of
the second sentence of that section,4 and of its cognate section
3
Alternatively, the judge ruled that if a special permit
were required for the project, the board correctly determined
that the new building was not substantially more detrimental to
the neighborhood than the existing structure or use, and was not
an intensification or extension of the use under Section IX-
B.2.B(1) of the local zoning ordinance. See note 5, infra.
4
The second sentence provides, "Pre-existing nonconforming
structures or uses may be extended or altered, provided, that no
such extension or alteration shall be permitted unless there is
a finding by the permit granting authority or by the special
permit granting authority designated by ordinance or by-law that
4
of the Newburyport zoning ordinance, Section IX-B.2.5 We
disagree. Because both the existing and replacement structures
are dimensionally conforming structures, the judge's
determination under the first sentence of G. L. c. 40A, § 6,
that the project does not entail a "change or substantial
extension" of the lawful preexisting nonconforming commercial
use ends the inquiry.6 The protections afforded under the first
such change, extension or alteration shall not be substantially
more detrimental than the existing nonconforming [structure or]
use to the neighborhood." G. L. c. 40A, § 6, second sentence,
inserted by St. 1975, c. 808, § 3. See Bransford v. Zoning Bd.
of Appeals of Edgartown, 444 Mass. 852, 857 (2005) (Greaney, J.,
concurring).
5
Section IX-B.2.B(1) of the ordinance requires the permit-
granting authority to find that "there will be no
intensification or extension of an existing nonconformity or the
addition of a new nonconformity." Section IX-B.2.B(2) requires
a finding that "the [project] will not be substantially more
detrimental to the neighborhood than the existing nonconforming
structure or use."
6
We reject Philippino's contention that the replacement
structure is not dimensionally compliant because the front-yard
setback in a residential district is thirty feet and the
building is only set back twenty-two feet. We agree with the
trial judge and the board that the twenty-foot front-yard
setback specifically designated for a building used as a nursing
home, rather than the general setback for a residential
district, controls. See Section VI-A of ordinance, "Table of
Dimensional Requirements." If each nursing home in Newburyport
had to comply with the front-yard setback of the district in
which it was located, there would be no purpose in the zoning
ordinance specifying a twenty-foot setback for nursing homes.
See Shirley Wayside Ltd. Partnership v. Board of Appeals of
Shirley, 461 Mass. 469, 475 (2012) (according deference to local
board's reasonable interpretation of its own zoning by-law).
5
sentence of G. L. c. 40A, § 6, govern, and the provisions of the
second sentence of § 6 are not implicated.7
2. Discussion. "[T]he primary source of insight into the
intent of the Legislature is the language of the statute."
International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853
(1983). The first sentence of G. L. c. 40A, § 6, inserted by
St. 1975, c. 808, § 3, provides in pertinent part:
"Except as hereinafter provided, a zoning ordinance or by-
law shall not apply to structures or uses lawfully in
existence . . . but shall apply to any change or
substantial extension of such use, . . . to any
reconstruction, extension or structural change of such
structure and to any alteration of a structure . . . to
provide for its use for a substantially different purpose
or for the same purpose in a substantially different manner
or to a substantially greater extent . . ." (emphases
supplied).
By its plain language, the statute makes an important
distinction between preexisting nonconforming uses and
nonconforming structures, and articulates different bases upon
which each loses its grandfathering protection. Nonconforming
uses lose their protection against subsequently enacted local
zoning ordinances when there is "any change or substantial
7
Because the judge was correct in ruling that the
protections of G. L. c. 40A, § 6, afford the defendants the
right to construct the project, we do not address the judge's
alternative conclusion that if a special permit were required,
the board correctly ruled that the project would not be
substantially more detrimental to the neighborhood than the
existing nonconforming use and would not result in any
intensification or extension of an existing nonconformity or
addition of a new nonconformity.
6
extension of such use." Nonconforming structures, on the other
hand, lose their protection when there is "any reconstruction,
extension or structural change of such structure," or
modification that amounts to "alteration of a structure . . .
for its use for a substantially different purpose or for the
same purpose in a substantially different manner or to a
substantially greater extent."8 See Barron Chevrolet, Inc., v.
Danvers, 419 Mass. 404, 409-410 (1995). Significantly, there is
no language in G. L. c. 40A, § 6, suggesting that its
grandfathering provisions for nonconforming uses and structures
have application to conforming uses and structures. We view the
omission of reference to conforming structures as significant.
See General Elec. Co. v. Department of Envtl. Protection, 429
Mass. 798, 803 (1999), and cases cited (court will not add words
to statute that Legislature did not put there).
With respect to prior nonconforming uses and structures
that have lost grandfathering protection for the reasons just
8
We are not concerned here with the second "except" clause
of the first sentence of G. L. c. 40A, § 6, which provides for
exemption from local regulation 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).
See Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass.
852, 859-862 (2005) (Greaney, J., concurring) (considering
whether reconstruction of dimensionally conforming structure on
undersized lot increases nonconforming nature so as to remove
protections of second "except" clause).
7
specified, the second sentence of § 6 (see note 4, supra)
provides that "[p]reexisting nonconforming structures or uses
may be extended or altered" if the proper local authority makes
a finding "that such change, extension or alteration shall not
be substantially more detrimental than the existing
nonconforming [structure or] use to the neighborhood." See
Barron Chevrolet, Inc. v. Danvers, supra at 412-413.
The judge below recognized the important statutory
distinction between nonconforming uses and structures, and the
inapplicability of the statute's provisions regarding loss of
grandfathering protection when the "reconstruction, extension,
or structural change" relates to a conforming structure.
Because the defendants' existing nursing facility and its
proposed replacement are dimensionally conforming structures
that serve a nonconforming use, the judge appropriately directed
his focus to the sole question of import: whether the project
proposed a "change or substantial extension" of the
nonconforming use.
To answer that question, the judge correctly invoked the
familiar three-pronged test described in Powers v. Building
Inspector of Barnstable, 363 Mass. 648, 653 (1973): (1) whether
the proposed use reflects the nature and purpose of the use
prevailing when the zoning ordinance took effect, (2) whether
there is a difference in the quality or character, as well as
8
the degree, of use, and (3) whether the proposed use is
different in kind in its effect on the neighborhood. Measuring
the project against those considerations, the judge concluded
that the project did not work a "change or substantial
extension" of the use because (1) the locus was operated and
would continue to operate as a nursing home, (2) operation of a
nursing home with 121 beds rather than 100 beds would not alter
the quality, character, or degree of that use, and (3) the
project would not have any adverse effect on the neighborhood
different in kind from the existing use, but would have a
"mitigating impact."9 In consequence, the judge concluded that
the project fell within the protection of the first sentence of
§ 6 and was permissible as of right. See Schiffenhaus v. Kline,
79 Mass. App. Ct. 600, 605 (2011) (local zoning ordinance or by-
law cannot conflict with the statute).
The determination that the project does not work a "change
or substantial extension" of the prior nonconforming use as a
nursing home is amply supported by the factual findings, and
Philippino does not seriously contest this aspect of the judge's
9
Here, the judge cited evidence of several salutary aspects
of the proposed facility's design, including that the
reconstructed building would stand further from the
neighborhood's residences and closer to the nearby industrial
zone, that improvements in lighting and screening would result
in less glare into the neighborhood, and that the relocation of
the loading dock would address noise concerns of the
Philippinos.
9
decision. Rather, she argues that the judge erred when he
concluded that the project does not fall within the § 6
limitation on grandfathering protection for "reconstruction,
extension or structural change" of a nonconforming structure.
That is so, Philippino argues, because notwithstanding that both
the existing and proposed structures comply with existing
dimensional and density regulations, they are devoted to a
nonconforming use. Put differently, Philippino argues that a
nonconforming structure for purposes of G. L. c. 40A, § 6,
encompasses a structure devoted to a nonconforming use even when
there is no nonconformity in the structure itself. Under
Philippino's view of the statute, a dimensionally conforming
structure devoted to a nonconforming purpose is subject to the
"reconstruction, extension or structural change" provision of
the statute, which, in turn, renders the project subject to
regulation under the Newburyport zoning ordinance.
We conclude that the plain language of the statute does not
support such strained interpretation. The fundamental flaw in
Philippino's argument is that it conflates structures and uses
-- measuring structural conformity by reference to the use of
the structure, and treating reconstruction of a conforming
commercial structure that serves a nonconforming use as if it
10
were a nonconforming structure. The statute treats structures
and uses differently.10
As discussed earlier, in enacting § 6, the Legislature
focused on the grandfathering rights to be accorded to
nonconforming uses and nonconforming structures, drawing a clear
distinction in the protections afforded. See Gale v. Zoning Bd.
of Appeals of Gloucester, 80 Mass. App. Ct. 331, 338 n.10
(2011); Bobrowski, Massachusetts Land Use and Planning Law
§ 6.01 (3d ed. 2011). We discern nothing in the language of § 6
that reflects the Legislature's intent to treat the
nonconforming use of a structurally conforming building as
creating structural nonconformity. Rather, the expressed
statutory test for loss of grandfathering protection for a
nonconforming use is whether there is a "change or substantial
extension" of the use; that for a nonconforming structure is
whether there is "reconstruction, extension or structural
change" of the nonconforming structure.
While we are aware of no case holding that replacement of a
conforming structure devoted to a nonconforming use that does
not result in a change or substantial extension of the use is
10
The distinction between structures and uses within § 6,
and the potential for confusion arising from the frequent
references to the two terms in common, was the subject of
discussion in Willard v. Board of Appeals of Orleans, 25 Mass.
App. Ct. 15, 20-21 & n.9 (1987).
11
permissible as of right under the first sentence of G. L.
c. 40A, § 6, no case holds otherwise. Such cases as approach
the issue concern the replacement of prior nonconforming
structures devoted to a prior nonconforming use, and, further,
suggest that the statute's reach is limited to nonconforming
uses and nonconforming structures, not conforming structures
devoted to a nonconforming use. See Powers v. Building
Inspector of Barnstable, 363 Mass. at 658 n.4 ("[T]he existence
of a lawful nonconforming use does not permit the erection of
additional buildings for the extension or enlargement of that
use" [emphasis supplied]).
In Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of
Falmouth, 385 Mass. 205, 215 (1982), which involved a change
from a resort hotel for older customers to an entertainment
complex catering to young nonguests, the court noted that "a
valid nonconforming use does not lose that status merely because
it is improved and made more efficient," provided the changes
are "ordinarily and reasonably adapted to the original use and
do not constitute a change in the original nature and purpose of
the undertaking" (citations omitted). Similarly, in Barron
Chevrolet, Inc. v. Danvers, 419 Mass. at 409, which involved
whether certain changes to signage constituted changes in prior
nonconforming uses, the Supreme Judicial Court noted that under
§ 6, "a by-law does not apply to a prior nonconforming use or
12
structure, but does apply to 'any change or substantial
extension of such use . . . [and] any reconstruction, extension
or structural change of such structure . . .'" (emphases
supplied) (quoting from G. L. c. 40A, § 6). As previously
discussed, the court emphasized that the right of a municipality
to regulate changes under the second sentence of § 6 "is limited
to the changes, extensions, reconstructions and alterations to
prior nonconforming uses and structures to which, under the
first sentence of G. L. c. 40A, § 6, zoning ordinances and by-
laws apply" (emphasis supplied). Id. at 413. Because the
changes there did not constitute a "change, extension,
reconstruction or alteration" of a prior nonconforming use or
structure to which, under the first sentence of § 6, zoning
ordinances and by-laws apply, the town could not regulate them.
See Derby Ref. Co. v. Chelsea, 407 Mass. 703, 713 (1990) (nature
and purpose of use -- "bulk deliveries by ocean-going vessels,
bulk tank storage and wholesale distribution" -- were unchanged
despite fact that product changed from fuel to liquid asphalt
and facilities were altered to allow for this change).
We do not read Berliner v. Feldman, 363 Mass. 767, 770
(1973), on which Philippino primarily relies, as requiring a
different result. Berliner did not involve the grandfathering
protection afforded to a preexisting nonconforming use under
G. L. c. 40A, § 6. Rather, it involved interpretation of the
13
provisions of a local zoning by-law regarding whether a
preexisting nonconforming structure (an inn) that was damaged or
destroyed by fire might be rebuilt. Because Berliner concerned
the reconstruction of a preexisting nonconforming structure
devoted to a nonconforming use (conducting an inn in a residence
district), to the extent that the statutory predecessor of G. L.
c. 40A, § 6,11 was implicated at all, the applicable provision
was that allowing for local regulation when there is a
"reconstruction, extension or structural change" of a
nonconforming structure. See id. at 771, 773, 774. See also
Healy, Massachusetts Zoning Manual § 6.7.2 (4th ed. 2007)
(building in Berliner appeared to be dimensionally
nonconforming). Accordingly, the court's statement to the
effect that the statute "does not confer the right to erect a
new building in place of an existing building used for a
nonconforming purpose," Berliner v. Feldman, supra at 770, must
be read in that limited context.12
11
The provisions of G. L. c. 40A, § 6, and its predecessor,
G. L. c. 40A, § 5, as appearing in St. 1954, c. 368, § 2, do not
differ for present purposes.
12
Although Berliner did not set forth the dimensional
nonconformities of the structure with precision, the decision
clearly refers to the inn as "a preexisting nonconforming inn,"
363 Mass. at 768, and discusses the right of the "owner of a
nonconforming structure" to rebuild. Id. at 773-775 (emphasis
supplied).
14
In sum, the judge did not err in ruling that the project
was permissible as of right under G. L. c. 40A, § 6.
Judgment affirmed.