32C-179 (35) ORDER
For the reasons stated, Cherry Realty's motion for summary judgment is allowed, and
nd Stuart,s motion for summary judgment is denied. Final judgement shall enter for
Flertman a
i
Cherry Realty.
Constance . Sweeney'.—
Justice of the Superior Court
DATED: June 7 , 2001
' 18
I. will not extend any closer to any front, side or rear property
boundary than the current zoning allows or existing structure
already extends and will not create any new violation of other
zoning provisions; and
2. does not involve a sign(sign standards are in § 7).
E. with a Variance when said change, extension or alteration will create any
new violation of the present zoning requirements.
F. with a combination of a Finding and Variance when applicable."
Clearly, subsections A,B, and C do not apply, given that Fleitman and Stuart are not rebuilding
or replacing the damaged building for the same pre-existing nonconforming use. Subsection D
does not apply, because the lot does not meet"other zoning provisions" including minimum lot
size requirements for general business use, and there is no evidence as to whether the proposal
meets frontage or setback provisions. Nor is there an"existing structure"or any data on its foot
print with which to compare the proposed structure to determine if"other zoning provisions"
were met. (Exhibit 5). Moreover, the record contains no evidence as to whether the proposal
involves a sign or is in violation of any other zoning provisions. If it is, then either subsection E
or F would apply, and Fleitman and Stuart would have to meet the criteria warranting a variance.
Because this court finds that the use was abandoned, however, Fleitman and Stuart should
request that the Board assess their property as a proposal to erect a new building for a
conforming use on an undersized lot. They should provide the Board with sufficient information
for them to assess whether the proposal violates any other zoning provisions, such as frontage
and setback requirements.
17
Assuming that the prior residential use was not abandoned, here,the local zoning
ordinances nonetheless would apply under G. L. c. 40A, § 6, paragraph 1, see text supra, because
the pre-existing nonconforming use was as a four-family house, and so does not fall under the
single and two-family home exemption contained in that paragraph. Fleitman and Stuart's
application would then be assessed as a proposal to change a pre-existing nonconforming use to a
conforming use, and a proposal to erect a structure on an undersized lot.
Even if the pre-existing residential use was not abandoned,the use was nonconforming,
and so by its plain language § 9.3 (2)(B) of the Zoning Ordinance does not apply. The ordinance
requires the present use to be conforming, and it is conceded that the prior residential use is
nonconforming. The only use that conforms to the Zoning Ordinance is the proposed use, a use
that had not yet come into existence.
Even if the prior residential use was not abandoned, the Board should have relied on § 9.3
(1), governing changes from pre-existing nonconforming uses. That section provides as follows:
"1. A Pre-existing Nonconforming Structure or Use may be changed, extended or
altered:
A. as-of-right when said change, extension or alteration conforms in all
respects to the present zoning requirements.
B. as-of-right when said change or alteration is limited to rebuilding a single-
or two family home destroyed by fire or other natural disaster within two
years of the disaster.
C. as-of-right when said change or alteration is limited to rebuilding any
other building not more than fifty percent destroyed by fire or other natural
disaster when the change is limited to rebuilding or replacing the structure
within the pre-existing foot print and height of the existing structure or
within an area and height that conforms to all dimensional requirements
and all construction occurs within two years of the disaster.
D. with a Finding from the Zoning Board of Appeals that such change,
extension, or alteration will not be substantially more detrimental to the
neighborhood than the existing nonconforming structure and/or use when
said change, extension or alteration:
16
of Blackstone, 33 Mass. App. Ct. 228, 233 (1992), citing Commonwealth v. Wood's Hole,
Martha's Vineyard &Nantucket Steam Ship Authority, 352 Mass. 617, 618 (1967) and would
add terms to §9.3 (2)(B), even though the overall context of the ordinance shows that the term
was intentionally omitted, see Doe v. Superintendent of Schools of Worcester, 421 Mass. 117,
128 (1995), citing Boylston Water District v. Tahanto Regional School District, 353 Mass. 81, 84
(1967). Moreover, where § 9.3 (1) explicitly uses the terms "rebuild" and "replace,"by allowing
the reconstruction of structures destroyed by fires so long as the pre-existing:use remains
unchanged, and where § 9.3 (2) makes no reference to any of these terms, the only inference that
can be drawn is that the drafters of the ordinance intentionally omitted "reconstruction"
subsection (2), and that the term "change" does not include "reconstruction." See id. See also
Anus v. Miller, 5 Mass. App. Ct. at 473.
There is no problem here with the proposed use, since it would bring the use of the Iot
into conformity with the zoning ordinance. But the fact remains that it is not a change in use.
Rather, because the prior use was abandoned, the situation is analogous to a lot which has never
before been used. Here, this vacant lot will be used for a use permitted under the zoning
ordinance, but the lot is still undersized. Fleitman and Stuart should request that the Board
assess their proposal under the zoning provisions dealing with such situations.'
3. Assuming that the prior residential use was not abandoned, the Board erred in applying
§ 9.3 (2)(B) of the Zoning Ordinance.
a As noted supra, there is no evidence in the record to indicate whether other zoning
provisions are implicated by the proposed one-story building.
Because the parties did not submit the entire Zoning Ordinance to the court, but only
submitted § 9 and the relevant use tables, it remains to be determined whether there is some other
section that covers a proposal to erect a new building for a conforming use on a vacant,
undersized lot or whether the owners must apply for a variance pursuant to G.L. 40A, § 10.
15
use in a pre-existing nonconforming structure or on a pre-existing nonconforming lot. There was
no conforming use to be changed from on the pre-existing nonconforming lot. Compare
Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657, 661 (1956)
(demolition of existing buildings and erection of a new building for the same nonconforming use
not permitted where by-law contained words "alteration" and"extension" but not
"reconstruction;" "the term alteration as used in the by-law can . . . only apply to existing
structures"). Also compare Angus v. Miller, 5 Mass. App. Ct. at 473 (use of word"rebuilt" in
one part of zoning law precluded board of appeals from interpreting"enlarged" in subsequent
section of the by-law to allow razing existing buildings and constructing new nonconforming
buildings in their place).
A comparison of all the sections in § 9 of the Zoning Ordinance also supports the finding
that that "reconstruction" is not a part of the "changes" permitted under § 9.3 (2). Section 9.2,
titled Extension and Alteration, states that § 9 of the Zoning Ordinance generally applies to:
"any change or substantial extension of[a pre-existing use] . . . to any
reconstruction, extension or structural change of such [pre-existing] structure, and to an
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." (emphasis added)
Thus a "reconstruction" or "structural change" to a pre-existing structure must comport with
zoning requirements. The separate uses of"reconstruction" and"structural change" in the
statement of general application indicates that the drafters of the ordinance were referring to two
separate things, and that"change" does not include "reconstruction." Upholding the Board's
interpretation, by reading"change" to include "reconstruction" in § 9.3 (2), would render this
portion of the zoning ordinance "surplusage," Advanced Development Concepts, Inc. v. Town
14
or to remodel. To form again or anew as in the imagination or to restore again as an entity the
thing which was lost or destroyed." It also defines"reconstruction" as the "Act of constructing
again. It presupposes the nonexistence of the thing to be reconstructed, as an entity; that the
thing before existing has lost its entity."
Here,the thing which was lost or destroyed is the nonconforming structure used as a
nonconforming residence. The thing which Fleitman and Stuart propose to build is a completely
different structure with a different use. As a matter of logic, Fleitman and Stuart cannot
"reconstruct" a building that is both completely structurally different and which will be used in a
completely different manner than the one which was destroyed. The proposed one-story general
office space can be constructed, but in no sense is it a "reconstruction" of the four-story, four-
family residence. In any event, any "reconstruction" of the previous structure would arguably
still have been subject to the Zoning Ordinance under Section 9.2, since the pre-existing
residential structure contained four units. The ordinance only exempts one or two-family homes,
and this may be a substantial change in use from the former use as a four-family residence.' The
Board therefore clearly erred in finding that the proposed construction was a"reconstruction"
that was an allowable "change" under § 9.3 (2)(B).
It is also clear as a matter of law that"change" cannot reasonably be interpreted to
include the term "reconstruction." Section 9.3 (2)(B) does not mention"reconstruction," but
rather refers to changes, enlargements, and alterations attendant to changes from a conforming
' Section 9.2, governing"Extension and Alteration" contains a nonconforming use
provision that applies to "structures or uses," but then states that the Zoning Ordinance applies to
"any change or substantial extension of such use, to a building or special permit issued after the
first notice of said public hearing,to any reconstruction, extension or structural change of such
structure" unless the changes and reconstruction are to one or two-family homes.
13
Feldman, 363 Mass. 767, 776 (1973).
In making its finding, the Board determined that the proposed construction was
"reconstruction" and followed prior decisions wherein the term"change" in § 9.3 (2)(B) was held
to include "reconstruction." Section 9.3 (2)(B), on which the Board relied, states that:
"A Conforming Use on a Pre-existing Nonconforming Lot or in a Pre-existing
Nonconforming Structure may be changed, extended or altered. . . with a Finding from
the Zoning Board of Appeals that such change, extension, or alteration will not be
substantially more detrimental to the neighborhood than the existing conforming use
when said change, extension or alteration is to a conforming use which requires the same
or less minimum lot-area,minimum lot width and frontage, minimum lot depth, setbacks,
and parking than is required for the present use (and lot does not fully conform to the
present zoning requirements for the proposed use)." (emphasis added).
The Board erred in applying this section to this"case for several reasons. The section deals with
changes, extensions, and alterations from a conforming use to a new use. Here there was a pre-
existing nonconforming lot but there was no present conforming use. There was only a proposed
conforming use not yet in existence.
Moreover, even if there was a present conforming use, the Board erred because it made
no finding that the proposed use had the "same or less minimum lot area, minimum lot width and
frontage, minimum lot depth, setbacks, and parking than is required for the'present use."
It is also clear that this case does not involve a"reconstruction" in any sense of the word.
Here, the proposed building and use was not a"reconstruction" in any common sense of the
word. Webster's II New College Dictionary defines "reconstruct" as "to construct again."
"Again," meaning "once more" or"to a previous place, position or state" implies a repeat of the
thing preceding. A one story office space is not a repeat of a four story, four-family residence.
Black's Law Dictionary, Sixth Edition, defines "reconstruct" as "to construct again, to rebuild . .
12
granting authority or by the special permit granting authority . . . that such change,
extension or alteration shall not be substantially more detrimental than the existing
nonconforming use to the neighborhood."
However, this section does not apply, since it deals with changes from a pre-existing
nonconforming use, and here that use was abandoned. Instead, paragraph four of the statute,
dealing with vacant lots, applies. See Dial Away, 41 Mass. App. Ct. at 168-170 (where pre-
existing nonconforming residential use was abandoned because of a lapse of time and because
the property owner proposed to build a single-family residence on an undersized lot, the court
held that exemption in paragraph four did not contemplate the "construction of a house in
replacement for one torn down" and that under paragraph one, the owner could reconstruct a
single family home within the exemption for single and two-family residences). That paragraph
exempts lots to be used for single and two-family residences from lot area, frontage, yard and
depth requirements under local zoning ordinances. This exemption does not apply here, because
the proposed use is for a commercial office space. The vacant lot is thus subject to the local
zoning ordinance, and is not covered by any of the provisions of G. L. c. 40A, § 6.
In determining the proper interpretation of a zoning ordinance, courts may look to the
intent behind the measure. See Dial Away, 41 Mass. App. Ct. at 170 (where the court found that
a zoning ordinance reflected legislative disfavor of nonconformities and an intent to eliminate
them if possible). The Dial Away court cited a line of cases stating the general proposition that
one of the objectives underlying zoning regulations is the elimination of nonconforming uses,but
it looked particularly to the local zoning ordinance to make that determination. See id. at 170.
Where the ordinance does not provide "explicit guidance," the court should look to "the spirit
expressed in the by-law toward non-conforming uses and their expansion." See Berliner v.
11
as there was other material evidence of Fleitman and Stuart's intent to abandon the prior
residential use. Fleitman abandoned the prior residential use when they voluntarily filed
applications and site plans indicating that the new construction on the site would be for a
different use in a structure different from the one which had previously stood on the property.
See Derby Refining, 407 Mass. at 710 (there was "no clear indicia of abandonment. For
example, the property was not left unprotected or unsecured, it was not changed to a conforming
use, and no buildings were demolished."). Because Fleitman and Stuart abandoned the prior
residential use, their property should have been assessed as a proposed conforming use on a
vacant lot that did not conform to current lot area requirements.6
A local zoning law applies unless it is preempted by the provisions of G. L. c. 40A, § 6.
See Dial Away, 41 Mass. App. Ct. at 171. Section 6, paragraph one,states that local zoning
ordinances shall apply to a pre-existing structure or use where there is:
"any change or substantial extension of such use, to a building or special permit
issued [after the zoning ordinance takes effect], to any reconstruction, extension or
structural change of such structure and to any alteration of a structure . . . for substantially
different purpose or for the same purpose in a substantially different manner . . . 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. 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
but it is not material, because there is other evidence as to Fleitman and Stuart's intent aside from
the demolition, discussed infra.
6 It is unclear from the record whether the proposed one-story structure would meet
frontage, setback, and other zoning requirements. Fleitman and Stuart's initial application for the
two-story office structure revealed that the proposal would violate frontage requirements (exhibit
5), but neither the site plan (exhibit 13), the application for a Finding allowing the one-story
structure (exhibit 7) nor the minutes of the planning board meeting (exhibit 11) indicate whether
or not the two-story frontage problem was remedied or whether the building meets setback and
other zoning provisions.
10
767, 772 (1993), but the "nonuse or sale of property does not, by itself, constitute an
abandonment." Derby Refining Co. v. Chelsea, 407 Mass. 703, 709 (1990). See also Cape
Resort Hotels. Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205, 221 (1982).
Rather,the evidence must show that the new owner used the property in a way other than
previously protected under the nonconforming use exemption. Id. The general test of
abandonment looks for"the concurrence of two factors, (1)the intent to abandon and (2)
voluntary conduct, whether affirmative or negative, which carries the implication of
abandonment." Derby Refining, 407 Mass. at 408. (cited cases omitted). If the demolition was
voluntary, then the prior residential use was necessarily discontinued. Dial Away, 41 Mass. App.
Ct. at 171. Voluntary conduct can include the voluntary surrender of a government-issued
license, see Dawson v. Board of Appeals of Bourne, 18 Mass. App. Ct. 962, 963 (1984), but
statements made to the government are not voluntary where the information is mandated by law,
see Derby Refining, 407 Mass. at 710.
The sale of the property here did not constitute an abandonment because there is no
evidence that at the time of the sale Fleitman and Stuart had any intent to change the use of the
property. Moreover, though there is a question as to whether there was a voluntary demolition,
as Fleitman and Stuart contend that the demolition took place pursuant to a condemnation order
issued by the Northampton Building Commissioner', see id., that question is not a material issue,
' Fleitman and Stuart, in their response to Cherry Realty's statement of uncontested facts,
state in paragraph 6 that"the structure was demolished pursuant to a condemnation by the
Building Commissioner." If Fleitman and Stuart had no option but to raze the structure, then the
demolition was not voluntary. Cherry Realty argued in its memorandum of law at page 6 that the
"prior use (residential)was voluntarily extinguished when defendants Stuart and Fleitman
demolished the four-family, four story nonconforming structure leaving a lot that does not
conform to minimum zoning requirements." These differing contentions raise an issue of fact,
9
they now seek to change the nonconforming residential use to a conforming use, i.e., commercial
office space in a general business district. Cherry Realty argues that the residential use was
destroyed when Fleitman and Stuart demolished the structure and later sought to erect a new
structure with a different proposed conforming use. The Board based its decision on the
assumption that there was a change from a pre-existing nonconforming use to the proposed
conforming use.
General Laws, c. 40A, § 6, paragraph four, discussing abandonment, states that"[a]
zoning ordinance or by-law may define and regulate nonconforming uses and structures
abandoned or not used for a period of two years or more." Thus, localities can determine when
and how a nonconforming use is extinguished. Northampton deals with abandonment in § 9.5 of
its Zoning Ordinance, by providing that "[a]ny nonconfoming use of a conforming structure
and/or lot which has been abandoned or discontinued for a continuous period of two (2) years or
more shall be deemed extinguished and shall not be re-established." (emphasis added). By its
plain language, the Zoning Ordinance does not apply here because the use,the lot and the
structure previously on the lot were all nonconforming, and the provision requires either the
structure and/or lot to be conforming. This requirement must be met before the two-year
grandfather period may operate. Fleitman and Stuart,therefore, cannot avail themselves of the
Zoning Ordinance to show that the prior residential use survived and could be relied upon in
proposing a conforming use of the property.
"Abandonment . . . may be found apart from the ordinance." Dial Away, 41 Mass. App.
Ct. at 171. The court may consider the subjective intent of the property owner. See id. at 172.
Voluntary demolition of a building constitutes abandonment, see Berliner v. Feldman, 363 Mass.
8
These uncontradicted contentions are sufficient to withstand Fleitman and Stuart's unsupported
argument that Cherry Realty does not have standing to maintain this action. See id. (plaintiffs
argued new development would increase traffic reduce the number of public parking spaces
available, and plaintiffs used those spaces for their business and personal use; court found that
those fears "are neither speculative nor too remote to"to find that the plaintiffs lacked standing).'
See also LaLonde v. Eissner, 405 Mass. at 209. In this case, it is not too speculative to say that if
Fleitman and Stuart's lot is full, their customers will park in Cherry Realty's lot rather than drive
to the off-site parking. Traffic would certainly increase during business hours compared to the
prior residential use, especially since there may be some customers who, upon pulling into the
proposed lot, will discover that they must then drive to off-site parking.4
2. The Board should have concluded that Fleitman and Stuart abandoned the prior
residential use.
Here, all the parties agree that before Fleitman and Stuart became owners of the property,
the pre-existing use, structure, and lot were all nonconforming. Fleitman and Stuart argue that
the pre-existing, nonconforming, residential use survived their demolishing the structure, and that
feared that the new office space would exacerbate the problem. He also cited current traffic
problems in the area, and his fear that the new office space would increase those problems.
(Exhibit 11 at 7-8).
' Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129, 134-138 (1992),
provided by Fleitman and Stuart, is not apposite to this case, because the plaintiffs in that action
had no personal injuries, but rather, cited concerns shared by all the residents in the surrounding
area. Here, the personal injury is the invasion of Cherry Realty's parking spaces on its own
property.
4 Cherry Realty still has standing even if, as it appears from the record, the off-site
parking spaces are adequate under the Zoning Ordinance, given the court's finding in Marshalian
that the fact that "the judge ultimately found the reduced number of spaces provided by the
variance to be adequate does not defeat a claim of injury to legal rights." Id. at 723.
7
arbitrary." Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483,
486 (1979). If reasonable minds can differ on the conclusion to be drawn from the evidence
presented, it is the board's conclusion, not the court's, that controls. See Dowd v. Board of
Appeals of Dover, 5 Mass. App. Ct. 148, 154 (1977). Moreover, a court should defer to the
interpretations a local zoning board gives, in its discretion, to its own ordinances and bylaws.
See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 556, 558-560 (1954); ACW
Realty Management v. Planning Board of Westfield, 40 Mass.App. Ct. 242, 246 (1996); Geryk
v. Zoning Appeals Board of Easthampton, 8 Mass. App. Ct.,683, 684-685 (1979).
1. Cherry Realty has standing to contest the Board's decision.
As a preliminary matter, Fleitman and Stuart have argued that Cherry Realty does not
have standing to maintain this action, but they advance no evidence in support of this argument.
Cherry Realty, as an abutter, enjoys a presumption of standing, but once the issue of standing is
challenged, that presumption falls away and it becomes a question of fact whether Cherry Realty
has suffered a cognizable injury. See Marshalian v. Zoning Board of Appeals of Newburyport,
421 Mass. 719, 721 (1996); Cox v. Board of Appeals of Carver, 42 Mass. App. 422, 425 (1997).
In order to have standing, Cherry Realty must suffer an injury to a legal right or property interest,
and the injury must not be either speculative or generally shared by other members of the
affected area. See Marshalian 421 Mass. at 723. As set out in the uncontradicted and Agreed
List of Exhibits submitted in support of the joint motion, however, Cherry Realty raised
contentions regarding traffic and parking at the hearing on Fleitman and Stuart's application.'
z Namely, that customers from the proposed office space will park in Cherry Realty's
spaces and not in the ones located further away. Naidorf mentioned that he had already had
problems with his customers' parking spaces being used by unauthorized persons, and that he
6
requirements, as well as the fact that in the current plan, the parking spaces did not meet
Department of Public Works' setback requirements. Id.
On March 25, 1999, the Board allowed the application pursuant to § 9.3 (2)(B) of the
Zoning Ordinance, stating that there was a change in use of a pre-existing nonconforming lot and
.that the proposed use was not substantially more detrimental because
"the requested use . . . would not be substantially more detrimental to the
neighborhood than the previous non-conforming use as a four-family residence. The
applicant presented that the use would generate less trash and sewage than the four-family
structure, and members were persuaded that overall traffic to the property would not
increase to the point of detriment, since the proposed use would generate less traffic on
the weekends and in the evenings." (Exhibit 11 at 1).
The Board made the Finding on the condition that "[t]he applicant must provide four off-site
parking spaces, as required in the Planning Board permit associated with this use." Id. at 2.
Cherry Realty then appealed the Board's decision to this court.
DISCUSSION
Summary judgment is proper where there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c); Allstate
Insurance Co. v. Reynolds, 43 Mass. App. Ct. 927, 929 (1997). A party cannot defeat the motion
for summary judgment by resting on his pleadings and mere assertions of disputed facts to defeat
the motion. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). There are no material facts in
issue, and the question of whether the Board properly interpreted § 9.3.(2)(B) of the Zoning
Ordinance is a question of law.
In reviewing a zoning board of appeals' decision, the court may not disturb the decision
unless "it is based on a legally untenable ground or is unreasonable, whimsical, capricious, or
5
Defendant Mark Nejame, a member of the Board, stated at the meeting that the Building
Inspector and the City Solicitor"had endorsed [the position] that the word `change' in Section
9.3 (2)(B) could be interpreted to include reconstruction" and then referenced a memorandum
from the Building Commissioner citing past interpretations of the term "change" to include
"reconstruction," including situations where "the original structure was razed to the ground and a
new structure rebuilt." (Exhibit 11 at 5). He also distinguished Dial Away as dealing with the
interpretation of a zoning ordinance that differed from that in Northampton. Based on the past
interpretations in Northampton, and his conviction that the Northampton Zoning Ordinance
differed from the ordinance in Dial Away, Nejame then stated that he felt that a finding under §
9.3 (2)(B) would be proper. Id.
There was also a discussion (but no agreement) as to whether the prior residential use still
existed or whether it had been destroyed when the residential structure was destroyed. The
parties also discussed their varying interpretations of G. L. c. 40A, § 6, Dial Away, and Angus v.
Miller, 5 Mass. App. Ct. 470 (1977). Id. at 7.
Naidorf also stated that he was concerned that the customers at the office building would
use his parking spaces rather than the ones provided off-site, thus diminishing his customers'
ability to use the spaces provided for them. Id. at 7-8. "He said that this was a reality, regardless
of the number of spots Fleitman got down the street." (Exhibit 11 at 8). He also argued that it
was irrelevant that he had the same right as other residents to tow cars illegally parked on his
property. Id. Fleitman conceded that he did not yet have a written contract for the off-site
parking spaces, and sought the Board's advice as to the number of spaces he should lease and for
how long. Id. There was discussion that the lease of off-site spaces would meet zoning
4
above those required by code and grandfathered spaces." (Exhibit 8).
In apparent response to a question from the Planning Board, the Northampton Building
Commissioner, in a memorandum dated February 17, 1999 (Exhibit 9), opined that Dial Away
Co., Inc. v. Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165 (1996), did not apply to
Fleitman and Stuart's application, as the proposed construction did not come under the state
statutory exception for single and two-family residences at issue in Dial Away. The
Commissioner then went on to state that there was no conflict between G. L. c. 40A, § 6, and
Zoning Ordinance § 9.3 (1)(D), presupposing that the pre-existing nonconforming residential use
survived Fleitman and Stuart's demolition of the structure and their avowed intent to erect a
different structure with a different use.
The Board held a hearing on Fleitman and Stuart's application; the meeting was
apparently combined with the Planning Board's review of the proposed site plan. The minutes of
the planning board meeting (Exhibit 11) indicate that Fleitman and Stuart proposed to provide
eight parking spaces on the property, as required under the proposed use, and that they were
planning to rent more spaces "down the street." Id. at 2. Fleitman also admitted at the hearing
that the proposed structure would have different setbacks from the former building, but
represented that current setbacks conformed to current zoning. Id. at 3. The owner of Cherry
Realty, Mark Naidorf, and his attorney were also present. Naidorf stated that he did not think
that § 9.3 (2)(B) was the correct provision under which to assess the property. Instead, he argued
both that the building was a reconstruction, and not covered by § 9.3 (2)(B), and that the pre-
existing nonconforming residential use had not survived the demolition of the prior residential
structure. Id. at 4.
3
story, four-family residential structure though the Zoning Ordinance set the maximum height at
three stories, (Northampton Zoning Ordinance Table 5-3), the area was zoned for general
business use, not residential use, (Northampton Zoning Ordinance Table 5-1), and the lot was
undersized at 4145 square feet, though the ordinance requires 6000 square feet. (Exhibit 5). On
October 29, 1996, there was a fire, and the four-family home was at least partially damaged. The
owners did not seek to repair or rebuild the structure, but rather sold the property to Fleitman and
Stuart on March 21, 1997. Cherry Realty was an unsuccessful bidder on the property. Within
eight months of buying the property, on June 11, 1997, Fleitman and Stuart received a permit to .
raze the four-family residence. Fleitman and Stuart's application to raze the structure gives no
indication of any intent to either rebuild the structure or to put the property to a different use.
After the property was razed, on November 15, 1997, Fleitman and Stuart sought a permit to
erect a two-story structure for commercial office space on the property, and stated in their
application that the lot and frontage were nonconforming. (Exhibit 5). The building
commissioner denied the application, citing § 9.3 of the zoning ordinance, and stated that
Fleitman and Stuart's proposal involved a"change in use nonconforming lot." (Exhibit 6). He
also stated that Fleitman and Stuart would have to submit a site plan, because the proposal was
"new construction of more than 2000 [square feet]." (Exhibit 6). On August 26, 1998, Fleitman
and Stuart applied for a Finding to construct a one-story office building. (Exhibit 7). They
stated that their proposal "represents a change in use of a nonconforming lot. Prior building was
4 family residential that burned and was subsequently demolished." Id. Fleitman and Stuart also
claimed in their application that there were six parking spaces "grandfathered" from the prior use
on the lot, and that in adding three more parking spaces, "this project adds 2 parking spaces
2
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HA.MPSHS � �' SUPERIOR COURT
CLERK MAGISTRATE CIVIL ACTION NO. 99-100
CHERRY REALTY, INC.
VS.
ZONING BOARD OF APPEALS OF CITY OF NORTHAMPTON & others'
MEMORANDUM OF DECISION ON JOINT MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, Cherry Realty, Inc. ("Cherry Realty") brought this action seeking a
declaration that the defendant Zoning Board of Appeals of the City of Northampton("the
Board") exceeded its authority when it granted the defendants Jay Fleitman and Mary Lou Stuart
("Fleitman and Stuart") a Finding and Special Permit to construct a one story office building on
land that Cherry Realty abuts. Cherry Realty argues that the Board erred when it made a Finding
and granted the permit. The defendants Fleitman and Stuart ("Fleitman and Stuart") defend the
Board's actions and argue that this court should uphold the Board's interpretation of the
Northampton Zoning Ordinance. The Board did not file any motions or memoranda on the joint
motion for summary judgment.
For the reasons stated below, Cherry Realty's motion is allowed and Fleitman and
Stuart's motion is denied
BACKGROUND
The parties do not dispute the following facts. Before Fleitman and Stuart bought the
subject property, the use, lot size, and structure were all nonconforming: the structure was a four
'. Mark Nejame, Robert Riddle, and Lawrence Snyder as Members of the Zoning Board
of Appeals, Jay Fleitman, and Mary Lou Stuart.
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C ,f mrnonwealth of Massachus s 3LC t
County of Hampshire 1
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f,TTEST
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CLEqK MAGISTRATE=a CIVIL DOCKET# HSCV1999-00100
CHERRY REALTY, INC.
VS.
ZONING BOARD OF APPEALS OF CITY OF NORTHAMPTON, et als
JUDGMENT ON FINDING OF THE COURT
This action came on before the Cowl, Constance M. Sweeney, presiding, upon
Joint Motion for Summary Judgment and pursuant to the Court's Memorandum of
Decision and Order,
It is ORDERED and ADJUDGED:
1. Cherry Realty, Inc.'s Motion for summary judgment is Allowed. Jay
Reitman's and Mary Lou Stuarts Motion for summary judgment is Denied.
Final Judgment shall enter for the plaintiff Cherry Realty, Inc.
2. The Clerk shall within 30 days send an attested copy thereof to the Clerk
and Zoning Board of Appeals for the City of Northampton
Dated at Northampton, Massachusetts this 7th of June, 2001.
By the Court (Sweeney, J.)
"- A,, \-
ar Jekanow ki, Jr.
Clerk/Magistrate