HomeMy WebLinkAbout0545 SCUDDER AVENUE (5) D1cL
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The Town of Barnstable
Department of Health Safety and Environmental Services
039. Building Division
367 Main Street,Hyannis MA 02601
Office: 508-862-4038 Ralph Crossen
Fax: 508-790-6230 Building Commissioner
September 17, 1998
Aaron Bornstein
297 North Street
Hyannis, MA 02601
Re: SPR-071-98 Chatham Real Property, 537, 543, 549 Scudder Ave, Hyannis Port
(287/019)
Proposal: Demolition of 3 buildings. Construct 7 2-story condo units.
Dear Mr. Bornstein,
The above referenced proposal was reviewed at the Site Plan Review Meeting of September 17,
1998 and approved under Section 4-7.4 (2) of the Barnstable Zoning Ordinance with the
following conditions:
• Applicant must submit a landscaping plan to Planning for approval.
• Proposal must be approved by Board of Health and Conservation
Commission.
Please be informed that a Building Permit is necessary prior to any construction. Upon
completion of all work, a letter of certification required by Section 4-7.8 (7) of the Town of
Barnstable Zoning Ordinance must be submitted. Also, all signage must be discussed with Gloria
Urenas of this Division.
Respectfully,
Ralph Crossen
Building Commissioner
ii
°FtHE)r►. Zoning Board of Appeals
Town of Barnstable - Planning Department
RARNSTABM = 230 South Street, Hyannis, MA 02601
v 6.39. 508 862-4685 Fax 508 790-6288
ArFD MA'S A
June 11, 1999
Ralph Crossen, Building Commissioner
Town of Barnstable
367 Main Street
Hyannis, MA 02601
Reference: 537, 543 &549 Scudder Avenue, Hyannisport, MA
Map 287, Parcels 019.001, 019.002 &019.003
Dear Mr. Crossen,
A review of our files concerning the subject property, and by visual observation we find that the property
continues to be used as a storage yard for two trailers. As you may recall in our letter of April 9, 1999, we
asked that you instruct the property owner to have these encumbrances removed since they are in
violation of the zoning district(RF-1 Residential) in which the property is located.
In your memo of April 15, 1999 you indicated that you had allowed the trailers"for short term storage" (a
couple of months)at some point in time prior to April 15, 1999. We believe the"short term" period has
expired. We are beginning to receive demands from abutters to take some action regarding these
eyesores.
We request, therefore, that you take immediate steps to have the trailers removed from this property.
Thank you in advance for your cooperation in this matter. If you have any questions, please call Debbie
Lavoie or Alan Twarog at ext. 4785.
Resp ully,
mmett Glynn, Chair
cc: ZBA File
Aaron Bornstein
Thomas Geiler,Director HSES
Bob Smith,Town Attorney
LBARNSTARM76;9t7
mees. j
Town of Barnstable
Zoning Board of Appeals
Decision and Notice
Appeal Number 1998-138 -Chatham Real Properties, Inc.
Special Permit Pursuant to Section 4-4.5(1) Change of a Nonconforming Use to Another Nonconforming Use
Summary: Denied THIS DOCUMENT HAS
Petitioner: Chatham Real Properties, Inc. NOT BEEN RECORDED
Property Address: 537, 543,&549 Scudder Avenue, Hyannisport
Assessor's Map/Parcel: Map 287, Parcels 019.001, 019.002 & 019.003 FILE COPY ONLY!
Area: 2.26 acres
Zoning: RF-1 Residential F-1 Zoning District
Groundwater Overlay: AP Aquifer Protection District
Background:
The property that is the subject of this appeal consists of 3 lots off Scudder Avenue in Hyannisport totaling 2.26 acres,
of which 1.04 acres is considered upland. The property is improved with 3 structures; a 4,742 sq. ft. store/shop
building, a 1,284 sq. ft. commercial warehouse and a 4,788 sq. ft. commercial warehouse, according to assessor's
records dated 08/31/98. The applicant is proposing to demolish 2 existing buildings, relocate the old school house
building to another site, and construct a two-story 7 unit condominium building and two detached garage structures for
parking.
The site is located in a RF-1 Residential F-1 Zoning District which only permits single-famiiy residences as-of-right.
Single-family houses abut the property to the south, north and west. According to the applicant, the property is
currently being used for storage. It was previously used as a candle factory and for various storage purposes. The
present use of the property for storage is nonconforming. In order to permit the proposed condominiums, the applicant
is applying for a Special Permit pursuant to Section 4-4.5(1)Change of a Nonconforming Use to Another
Nonconforming Use.
In July of 1987, the Zoning Board of Appeals granted Special Permit No. 1987-48 for a change of a nonconforming use
to another nonconforming use from a candle factory to 7 one-bedroom condominium units. This Special Permit was
granted with several conditions but was never exercised and is therefore null and void.
Procedural Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on September 29,
1998. A 60 day extension of time for holding the hearing and for filing of the decision and an additional 90 day
extension for filing of the decision was executed between the applicant and the Board Chairman. A public hearing
before the Zoning Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL
Chapter 40A. The hearing was opened December 16, 1998 and continued to January 13, March 17 and April 7, 1999,
at which time the Board denied the applicant's request.
Hearing Summary:
December 16, 1998
Board Members hearing this appeal were Gail Nightingale, Ron Jansson, Thomas DeRiemer, Elizabeth Nilsson, and
Chairman Emmett Glynn. Alternate Board Member David Rice also heard the testimony. Aaron Bornstein represented
himself before the Board. Also present were Stuart Bornstein; Arne Ojala and Dan Ojala of DownCape Engineering;
and Peter Dimeo and David Hopkinson of Peter F. Dimeo Associates, Inc. -Architects and Engineers. Mr. Bornstein
submitted to the Board a set of plans entitled"School House Pond Condominium" dated 12/01/98 including 13 pages.
He also submitted a letter from the Board of Health dated October 20, 1998 and a letter from Mrs. Robert Morey dated
December 02, 1998.
Mr. Bornstein reviewed the proposal stating he is seeking permission to build seven condominiums. The units have
two bedrooms and are two stories. The garages are one story. The site has Board of Health approval for fourteen (14)
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Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham Real Properties,Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
bedrooms. The project is more than 50 feet from the wetlands. The site has three buildings located on it. The
applicant proposes to raze two of the buildings and relocate one building to another location in Hyannisport. There is
some hazardous material on site that will be removed by a licensed contractor. The proposal will use less ground
coverage than what is there presently. The existing impervious material (including buildings and ground cover) is over
40,000 sq. ft. and the proposal will be for 18,000 sq. ft. -less than half of what currently exists. The current footprint is
9,711 square feet of building and they are proposing a footprint of 9,600 square feet.
Mr. Bornstein reported this project is geared at the"empty nesters" so there will be no impact on schools and there will
be a minimum amount of traffic. The buildings are designed to fit in with the"Hyannisport look". The buildings that are
on site now are a blight to the area. They have been used since 1943 for many commercial uses. Mr. Bornstein said
that the site is now used for warehouse storage; the storage of automobiles and construction materials. A letter from
Mrs. Robert Morey was read into the record in which she writes, "Since our ownership of the property, from September
11, 1991 to November 25, 1997, we have used the property for warehouse storage of household items, vehicles, and
other items. In addition, the Hyannisport Club leased the property for a period of time to store maintenance equipment
for maintaining their facilities." Mr. Bornstein stated this storage was in all three buildings. It was unclear whether this
storage was related to a commercial use or personal use. The Board asked for proof that this was a legal, commercial
use. The Board needs the applicant to establish the on-going legal, nonconforming use from before the 1980s to date.
The Board asked for verification that the Master's Report of June 24, 1980 from the Superior Court for Building
Inspector of the Town of Barnstable vs. Old Harbor Industries has been confirmed and adopted by the Court.
Mr. Bornstein noted the Old School House will be moved to another site in Hyannisport and will be completely restored.
They have permission from the Town to tear it down, but they found a site where it would fit in and chose to move it
instead of demolishing it. He reported they met with the"Friends of Hyannisport" and several abutters to review this
project. Most people liked the proposal with the exception of the density issue. He explained that the cost is
prohibitive to build less than what-they are planning. He stressed that.there is_a great financial cost to remove the-
buildings and rebuild and landscape the area.:=There_is-a need-for these types of units for_older_peo_ple�in;the;,
Hyannisport area. y
The Board was concerned because the plans that were submitted at the hearing, dated 12101/98, differ from the plans
that were submitted with the application and dated September 17, 1998. The plans that went before Site Plan Review
were the plans dated September 17, 1998. Mr. Bornstein indicated the buildings grew"wider by seven feet". He
reported that information to the Building Commissioner and Mr. Bornstein said the Building Commissioner told him he
did not need to return to Site Plan Review. Dan Ojala reported there was about a 1,000 square foot difference in the
new plan and the old plan but stressed the project is still within the setbacks. Dan Ojala reported that some of the
balconies in the back(on the old plans) are now sitting rooms which would be considered living space and thus
increase the livable square footage calculations. But the size of the building is still within the Zoning Ordinance
requirements. The proposal still needs to go before the Conservation Commission.
The Board reminded the applicant that he is seeking a change from one nonconforming use to another and not an
expansion and therefore he can not exceed the square footage from what is currently utilized on site.
Mr. (Stuart) Bornstein reviewed the plans. The existing building footprint is 9,711 square feet(not including the patio).
The proposed building footprint is 9,645 square feet(not including the decks). Therefore, the footprint is less. The
impervious area is also decreasing. The Board stressed that the decks should be included because they are part of
the structure. The decks are 1,012 square feet(total). If the decks/balconies are included, the total square footage is
10767 square feet which is about 900 feet over what is currently on site and the applicant would need to seek
additional relief.
The Board asked about stories and Mr. (Stuart) Bornstein reported the buildings are all two stories. The basements
are walk-out, but no plumbing will be included. They are not to be considered living quarters. They are to be used for
utilities and equipment only. .
Dan Ojala discussed the septic system. The Board of Health reviewed the project and has no objection to the
proposed 14 bedrooms. They felt that nitrogen loading was not a concern and they had no problem with the septic
system proposed by the applicant. Mr. Ojala stated the project will improve the wetlands on the site. Currently there is
a paved Swale on the lot that now drains into the pond; with this proposal, that will change. There will now be on-site
drainage and a vast improvement to the wetlands.
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Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham Real Properties, Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
The buildings will be sprinkled for extra fire protection. The rear of the site can be accessed because the site is set
back 30 feet from Lake Avenue. Mr. Ojala reported that there are right-of-way easement agreements in force that allow
the applicant to use the right of way on the adjacent property. He believes they have been used enough so that they
have not expired.
The Board asked about the elevation at bottom of the bank. Mr. Ojala reported it is now at elevation 9 and it will stay at
that. There will be some regrading in the area of the existing pavement within the 50 foot conservation buffer. That will
be discussed at the Conservation Commission hearing. The elevations on site were discussed. Unit 1 is partially in a
Zone B on the FEMA maps, however, Mr. Ojala was not concerned with flooding due to the good gravel sand in that
area.
Public Comments: Attorney Ford spoke. He is representing the"Friends of Hyannisport"which is a group of twenty-
seven local residents, some of whom are direct abutters. They met with the applicants and were concerned with the
size and bulk of the project. Mr. Ford reminded the Board that under the Zoning Ordinance, Section 4-4.5(1) Change
of a Nonconforming Use to Another Nonconforming Use, Subsection (B)(5)clearly states, "the proposed nonconforming
use does not expand the gross floor area of the nonconforming use [on site]." The applicants did not apply for an
expansion of a nonconforming use but rather a change and, based on the relief they applied for, the applicants can not
increase the gross floor area. It is this increase in gross floor area that the neighbors are against. The project is too
big for the site. Attorney Ford also questioned if there is actually a nonconforming use on the site. The abutters Mr.
Ford represents disagree with the Applicant that there has been an ongoing commercial warehouse storage use on the
site. This is a residential area and the pre-existing nonconforming use for all three buildings must be established.
Elihu Stone commented on the"timing"of the hearing which is being held in the winter time when the summer
residents in Town are not around. He is concerned with the number of bedrooms and bathrooms since the building is
close to the marsh and School House Pond. He said the area is very busy with children in the summer and this project
would add to the traffic in the area. Steve O'Neil spoke in favor of the project. He is a realtor and reported he has
received many calls from peopleaeeking this type of housing. There are seventeen letters of opposition in the file.
Attorney Ford addressed the Board again. He reported in 1975 a group of neighbors in this area, brought an action to
Superior Court seeking a mandatory injunction ordering the Building Inspector to cease the commercial operation on
the 2nd floor of the school house and the warehouse. An injunction was issued stating the use of the second floor of
the school house and the warehouse use were illegal. The nonconforming rights had lapsed. Mr. Ford submitted a
copy of that order of mandatory injunction.
No one else spoke in favor or in opposition to this appeal.
The Board asked if the units were to be year round or seasonal rentals. Mr. Bornstein reported that their bylaws will
not allow for the units to be rented for less than one year. They can not be rented by the week or month. The Board
asked that the Condominium Bylaws be available if they wish to review them.
The Board voted to continue Appeal Number 1998-138 to January 13, 1999 at 7:30 PM.
January 13, 1999
Board Members hearing this appeal were Ron Jansson, Tom DeRiemer, Elizabeth Nilsson, David Rice, and Chairman
Emmett Glynn. Gail Nightingale was replaced by Alternate Board Member David Rice, who heard the testimony at the
previous hearing. Aaron Bornstein represented himself before the Board. Also present were Stuart Bornstein and Dan
Ojala of DownCape Engineering.
Aaron Bornstein addressed the Board and reviewed the letters he had previously submitted to the file. He reported the
total gross square footage is 15,137 feet of gross floor area as derived by an exact field measurement performed on
December 23, 1998 by Peter Dimeo. The square footage for the proposed condominium project is 14,626 square feet
or 511 square feet less than what is currently on site.
The second floor of the school house building was condemned around 1985 due to lack of a second means of egress.
In Mr. Aaron Bornstein's opinion, the use of warehouse storage was not condemned and was not abandoned so that
square footage should be considered when calculating the total square footage on site. In 1987, that second floor was
considered in the total square footage when this project originally came before the Zoning Board of Appeals.
Stuart Bornstein reported the second floor of the school house building was used as an office and then for storage.
When he bought the property there was"junk" on the second floor. The square footage on that second floor is only 850
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Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham Real Properties,Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
sq. ft. and if the Board decides not to include that amount in their calculations, he would be willing to"downsize"the
condominium project to meet the GFA limitation.
Regarding the basement, Mr. Aaron Bornstein stated the height and use will comply with the Zoning Ordinance and as
approved by the Building Department. The basement is approximately 7.9 feet in height.
The plans submitted to the Board did not have complete calculations. They were reviewed briefly by Dan Ojala and
Stuart Bornstein. The Board indicated the documents submitted were incomplete and stated that more complete
drawings were needed.
Three letters were submitted by the applicant in an effort to establish the legal pre-existing nonconforming use. The
letters from Lee Eiler, Daniel St. Pierre and Donald P. MacKeag refer to"a use"from 1987-1997. They refer to a
personal use for personal warehouse storage. The Board was concerned because these were"just letters". They are
not affidavits or legal documents. In the Board's opinion, they do not establish a legal pre-existing nonconforming use
of a commercial nature.
The Board and Dan Ojala discussed the nitrogen loading calculations for this site. Based on this site location, there
are no Federal, State or local regulations on nitrates into the ground water from this site. Mr. Ojala is of the opinion,
this project will have little impact on the pond and little impact on the environment.
The Board reviewed the letter from the Board of Health giving approval for this project. The ZBA Members were still
concerned because this letter did not say if the Board of Health looked at the nitrate loading coming from this site. The
Board requested a letter be sent to the Health Division asking whether or not the amount of nitrate loading in this area
by this proposal is going to represent a problem.
This project was also before the Conservation Commission on January 5, 1999. Mr. Aaron Bornstein reported at that
hearing, there was discussion regarding a drainage_plpe.running..under.this site put there by the..Town (without the _
owner's permission and without any easement rights) This pipe allows the road.to drain into the.pond. The applicant
and the Town's Engineering Department are exploring where-and how-to move that pipe. That hearing was
continued to March 2, 1999.
The Board asked about the floor plan. There are to be a total of fourteen (14) bedrooms. The plans show a loft in
some of the units. Mr. Stuart Bornstein indicated that these are not additional bedrooms- but rather"sought after
areas"-more like a"play room for adults"-a place for a television, computer, office equipment, exercise equipment,
etc. The Condominium Bylaws will state that each condominium shall have no more than two bedrooms with no more
than two people per bedroom. This area is not intended to be a bedroom. Dan Ojala indicated the septic system is
based on fourteen (14) bedrooms, but it could handle more for a short period of time (a few years). Mr. Ojala stated he
will bring the floor plan showing the loft to the Board of Health and make sure this meets their approval. Stuart
Bornstein stated he could enlarge the septic system if the Board wants, but he does not want to encourage more
bedrooms on the site. Three of the units will have walkout basements and if the Board wishes, Mr. Bornstein indicated
they would be willing to eliminate the walkouts, so as to discourage the basements from being used as living areas.
Public Comments: Attorney Ford spoke. He stressed the letters submitted by the applicant from Mrs. Morey, Lee
Eiler, Mr. St. Pierre and Mr. MacKeag, all demonstrate that the property was used from 1989 to 1997 for the storage of
personal items. This is not a commercial use and therefore the commercial use and any pre-existing nonconforming
use has lapsed. He told the Board that the abutters he represents are in favor of some sort of development on this
property, but think it should be a smaller project. He also questioned the bedroom count. Mr. Ford also stated that he
personally was at the Conservation Commission hearing and indicated that ConCom had other concerns not
mentioned by the applicant.
In rebuttal, Stuart Bornstein stated that the use of these building has been for storage- personal and/or commercial.
Mr. Bornstein reported that he was told by the Building Commissioner that if you are storing things whether commercial
or personal-it is considered a"warehouse". [Note: The Building Commissioner was not present.] Mr. Bornstein is
storing both personal and commercial items in these buildings. This is the pre-existing nonconforming use on the site
and he has not abandoned that use. There are three buildings on the site. The candle factory, the warehouse, and the
school house. Mr. Bornstein reported the candle factory basement is now being used as a storage area for his autos.
The warehouse is being used to store building materials. The old school house is too fragile to be used for anything at
this time.
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Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham Real Properties,Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
Ron Jansson questioned the pre-existing nonconforming use. The nonconforming use on this site was the candle
factory. The structures on the property,which were used for storage, were accessory to the candle factory use. The
candle factory stopped its operation in 1987. Mr. Jansson asked if the nonconforming use stopped, and there was no
request to change from one nonconforming use to another nonconforming use, how can an accessory storage use
(which was accessory to the nonconforming use)continue on the site. A storage use on the site would be a
nonconforming use but would it be a legal nonconforming use. Mr. Jansson asked what(if any) is the legal pre-existing
nonconforming use on this site. This must be established to show standing.
Aaron Bornstein reported the Building Commissioner has specifically said "the site has not been abandoned." [Note:
Nothing was submitted in writing to that affect from the Building Commissioner and he was not present.]
Some of the Board Members felt the applicant had not proved standing before the Board. If they can not establish that
there is a legal pre-existing nonconforming use-and that the use has not been abandoned -they can not go any
further. The Board stressed that"letters" are not enough. They must present documents, such as affidavits, to legally
demonstrate the pre-existing nonconforming use. The Board was willing to continue this hearing -one last time-to
allow the applicant time to get the documents needed to prove the legal pre-existing nonconforming use. If the legal
pre-existing nonconforming use is established to the Board's satisfaction, then a more complete set of plans with exact
calculations and measurements must be presented to the Board.
Chairman Glynn reviewed what had been requested at the December 16th meeting. These items were not presented
in the proper manner and again he requested the applicant provide: accurate calculations of the total square footage of
all proposed units/buildings; the time frame regarding the nonconforming uses for each building from 1980 to date; and
confirmation of the on-going nonconforming use status of each building. This must be done on a more"formal" level.
Chairman Glynn was also concerned with whether the Board of Health has addressed the matter of the number of
bedrooms on site. He would like a letter from the Board of Health regarding the number of bedrooms on site and the
proposed septic system. The Board Members agreed if the applicant cannot fully establish the legal.pre-existing,____- . , .,
nonconforming use, he should not spend the money on other concerns of the Board, such as full scale plans. But if he
does establish it, then the applicant must provide the other information the Board has requested.
The Board requested a letter be sent to the Town Attorney. They questioned if the legal pre-existing nonconforming
use on this site was that of a candle factory, and the storage use on the site was accessory to the candle factory, then
when the candle factory use stopped, could the accessory use of storage now be considered the legal pre-existing
nonconforming use even though no relief was granted to change from one pre-existing nonconforming use to another
pre-existing nonconforming use? If the storage on site is non-candle related, is that a different use? Is the storage
now the primary use- not the accessory use-and is it a legal, pre-existing nonconforming use? Further, if the storage
is now considered the legal pre-existing nonconforming use, is there any differentiation between personal and
commercial storage.
The Board voted to continue Appeal Number 1998-138 to March 17, 1999 at 8:00 PM.
March 17, 1999
At the start of the hearing, Chairman Emmett Glynn read a letter dated March 09, 1999 from Aaron Bornstein. It states,
"I am requesting a continuance to April 7th for the reference Appeal for Chatham Real Properties. We are in the
process of scaling down the project so that it might better fit into the surrounding area."
At the previous hearing for this appeal, the Board had requested a letter be sent to the Town Attorney questioning the
legal pre-existing nonconforming status of the lot in issue. The Town Attorney responded in a letter dated March 05,
1999 in which he states, "Please be advised that the petitioner's attempt to conceptually separate the use of part of the
locus as storage, which was accessory to the principal candle factory use previously established as a pre-existing,
nonconforming use, and.to invest that accessory use for the status of a protected principle use, is inappropriate." If
there is no longer a pre-existing nonconforming use on the site, the Board questioned how they could grant relief even
if the project were being scaled down as the Applicant has indicated. Because the Applicant was not present this
evening, they asked for a letter to be sent to him stating he must be prepared on April 7th to address the issue of the
Town Attorney's letter.
It was decided to allow the Applicant's request for a continuance and continue this appeal to April 07th at 7:30 PM.
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Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham Real Properties,Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
April 7, 1999
Board Members hearing this appeal were Gail Nightingale, Ron Jansson, Thomas DeRiemer, Elizabeth Nilsson, and
Chairman Emmett Glynn. Attorney Michael Princi represented the applicant. Present were Aaron Bornstein, Stuart
Bornstein; and Dan Ojala of DownCape Engineering.
Upon opening this appeal, Chairman Emmett Glynn explained that there are only four Board Members present tonight
who had previously been present at every continuance on this appeal. The fifth member, Alternate Board Member
David Rice, is in the hospital. He also explained that Gail Nightingale(who sat on the original hearing) has watched
the video of the hearing she missed, and has been given all the material that was submitted to the file for this appeal.
Attorney Princi was given the option of having Mrs. Nightingale sit as the fifth member or proceed with a four member
board knowing that under MGL Chapter 40A, a positive vote of at least four out of a five member board is needed to
grant the relief being sought. Attorney Princi reported that Mrs. Nightingale is acceptable and has no objection to her
sitting on the Board as the fifth member. Attorney Ford represented the abutters in this appeal and he reported he has
no objection with Mrs. Nightingale sitting on the Board.
Attorney Princi addressed the Board and discussed his memorandum, dated March 31, 1999, previously submitted to
the file. Included in the memorandum is a copy of the case of Powers v. Building Inspector Town of Barnstable. In that
case, the court found the buildings had been used for dead storage for the wholesale business of the candle factory
and affirmed (as of 1973)that dead storage was the nonconforming use of the three buildings on site. In the Master's
Report of 1980, it was again found that the buildings were used for dead storage. They found (at that time)that the
candle factory use on the site was an expansion of the nonconforming use of"dead storage". Attorney Princi reported
the Master's Report was affirmed and not appealed nor overturned on appeal.
The history and ownership of the property were reviewed by Attorney Princi. The deeds from the site were submitted.
The Assessor's Records have always listed the buildings as warehouse buildings and commercial use buildings. Also
submitted were checks from the Hyannisport Golf Club for payment to use the building as storage. The affidavits from
Donald MacKeag and Daniel St. Pierre indicate the site was used for dead storage of items. The letter from Mrs.
Morey further supports that from 1991-1997 she, too, let the Hyannisport Club use the property for storage. Included in
the memorandum were portions of the book, Old Hyannis Port,which supports the use of the buildings as dead storage
for a number of years.
The proposed project for the site originally called for seven units. Based on concerns from the Conservation
Commission and the Zoning Board of Appeals, the applicant has scaled back the number of units from seven down to
five units, reduced the lot coverage, and improved the distance from the buffer such that the units will not infringe on
the 50 foot conservation buffer. This new proposal accommodates the concerns of the ConComm, and it addresses
the concerns of the abutters as to the number of units.
The calculations for the site were reviewed by Attorney Princi. The current impervious area is 40,659 square feet and
the proposed impervious area is 14,472 square feet. The existing footprint is.9,711 square feet and the proposed
building footprint is 8,395 square feet. Approximately 2,500 square feet of paved area within the wetlands buffer has
been removed entirely. The gross square footage of the existing buildings is 15,137 square feet. The gross square
footage of the proposed five units is 11,709 square feet. The applicant is attempting to use the site in a diminished use
such that the commercial use (which is an eyesore) is removed and a residential character is maintained within the
site.
At a prior Zoning Board of Appeal's hearing, the Board was concerned with whether or not the Board of Health had
addressed the matter of the proposed number of bedrooms on site. A letter, dated March 26, 1999, has been received
from Susan G. Rask, Chairperson, Board of Health, which states, "The Board of Health has no objection to the
proposed 14 bedroom condominium building [at this site]." The new plans call for off site drainage which was approved
by Bob Burgmann, Town Engineer.
The elevations and floor plans (dated 03/31/99)were reviewed. There will be five units with four 3 bedroom units and
one 2 bedroom unit for a total of fourteen (14) bedrooms on site. Attorney Princi stated the height has not increased
and is within the limits of the Zoning Ordinance. The applicant has just"carved out the 2 middle units" and gone from 2
bedroom units to 3 bedroom units.
Ron Jansson asked Attorney Princi to review the legal pre-existing nonconforming use on the site. Attorney Princi is of
the opinion, based on the previous court cases, that the buildings were used for dead storage from 1905 to 1973 (when
the court decision was rendered)and that is the primary pre-existing nonconforming use. He does not consider the
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Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham iReal Properties,Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
storage use"incidental"and there is no indication that storage was not the principal use on the site. The main use on
the site was the storage use-not the candle use. This is supported by the court's decision. The Master's Report and
the case of Powers v. Building Inspector Town of Barnstable were again reviewed by Attorney Princi. In fact, the court
in 1973, told the candle factory to stop using the building for more than dead storage. The court determined in 1973
that the retail use was an expansion of the nonconforming use-which was dead storage-and the use of the school
building for administrative offices was an expansion of the nonconforming use-storage, and that both these uses
should stop. As to the"type"of storage, Attorney Princi stated there is no difference between commercial storage and
noncommercial storage. "Storage is storage" and the nature of the storage is not the issue.
Board Member Ron Jansson felt the predominant pre-existing nonconforming use on the site was that of a candle
factory. Attorney Princi is of the opinion the predominant pre-existing nonconforming use was dead storage based on
the Master's Report and the Powers Case. The court clearly states that the storage use was the use on the site (from
1912) since prior to zoning and continued after the zoning change. At the time of the adoption of zoning in the area
(1949), the site was used for dead storage for a number of different items, such as coal, oil, fishing gear, etc. The
candle factory had not started yet, so the storage could not have been for the candle factory's storage.
Board Member Gail Nightingale asked about the storage on the site after 1987 to the present. The items stored during
that time are not commercial in nature and she is concerned that the commercial use of the property may have been
abandoned. Attorney Princi responded the Hyannisport Club did, in fact, use the site for storage during that time
period. In his opinion, dead'storage should not be classified as residential or commercial because the character and
nature of what is stored does not matter.
Public Comments:
Attorney Ford'addressed the Board. He indicated the revised plans are a"step in the right direction" but they do not
feel it goes far enough. They would like only four units on the site. Density is still an issue since the number of
bedrooms has not been reduced (remaining at fourteen).. Attorney Ford is of the opinion that the pre-existing
nonconforming use on the site has lapsed and the applicant needs Variance relief not a Special Permit. He stated the
Master's Report does not deal with all the buildings on the site. He asked about the pre-existing nonconforming use for
all the buildings and asked if the use during the past ten years has been substantiated and not abandoned. No one
else spoke in favor or in opposition.
Town Attorney Robert Smith reviewed his letter to the Board in which he stated the storage use can not be separated
from the principle permitted use and then (itself) become the principle use on the site. However, he is not making a
factual determination as to the specific use on this site or whether or not it has been abandoned. Zoning for the Town
was approved in 1928. This area has always been zoned residential,but the 1928 zoning states that if there was a
business use there prior to 1928, it could remain.
Aaron Bornstein addressed the Board. Earlier, Attorney Ford implied the cost of this property has gone down over the
years because the nonconforming status lapsed. Mr. Bornstein disagreed. He said the value of the property has gone
down because it is an eyesore not because the nonconforming use has lapsed.
Chairman Emmett Glynn asked Aaron Bornstein about the two trailers located on the site. Mr. Bornstein reported they
are rental units used to store doors and windows for other on-going construction projects by his company at other sites.
He does not have a Special Permit for them because the Building Commissioner told him it was a legal use and he did
not need a permit.
As to the use of the term"storage", Town Attorney Robert Smith reminded everyone that everything everyone does
involves"storage"to one extent or another and the idea of what is stored must be analyzed.
Findings of Fact:
At the hearing of April 7, 1999, the Board unanimously found the following findings of fact as related to Appeal No.
1998-138:
1. The applicant is seeking a Special Permit pursuant to Section 4-4.5(1)to change one nonconforming use to
another nonconforming use.
2. The property in issue is owned by Chatham Real Properties, Inc. It is addressed as 537, 543 and 549 Scudder
Avenue, Hyannisport, MA as shown on Assessor's Map 287, Parcels 019.001, 019.002, and 019.003 and consists
of 2.26 acres of land of which approximately one and a quarter acres is upland.
r-
Town of Barnstable-Zoning Board of Appeals-Decision and Notice
Appeal No. 1998-138-Chatham Real Properties,Inc.
Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use
3. The property is located in the RF Residential F Zoning District, and according to information received, ever since
zoning was adopted in this town, the property has been zoned for residential purposes.
4. The property consists of three structures; a 4,732 square feet store/shop building, a 1,284 square feet commercial
warehouse, and a 4,788 square feet commercial warehouse.
5. The Petitioner is seeking to demolish the existing three buildings and construct a five-unit condominium complex
and therefore is seeking relief before the Zoning Board of Appeals.
6. Zoning, as addressed by the Town Attorney,was adopted by the Town of Barnstable in 1928 and at that time,
zoning in this area was residential.
7. The Board has heard some information pertaining to the uses on this site throughout the years, since 1928, as
evidenced by the Master's Report, the presentation by the Petitioner, and the affidavits submitted, pertaining to the
uses allowed on this particular property.
8. From 1987 through 1997, there has been some use made of the property in terms of storage. But, no
documentation has been presented showing that, continuously from that time, the storage was that of a
commercial nature. The storage on the property was, at best, intermittent and not consistent throughout the years.
9. Based upon that fact, the nonconforming use either, (first)was not continued from the date of 1928 or(second)
during 1987 through 1997 was abandoned.
10. Accordingly, there is no nonconforming use presently on the site.
Decision:
Based on the findings of fact, a motion was duly made and seconded to deny the application based on the fact that the
nonconforming use, presently, could not be established on the site.
The Vote was as follows:
AYE: Ron Jansson, Gail Nightingale, Thomas DeRiemer, Elizabeth Nilsson, and Chairman Emmett Glynn
NAY: None
Order:
Appeal Number 1998-138 has been Denied.
Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty (20) days after
the ate of the filin this decision. A copy of which must be filed in the office of the Town Clerk.
Emmett Glynn, Chairman Date Signed
I Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty
(20)days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has
been filed in the office of the Town Clerk.
Signed and sealed this & day of nder th pains and penalties of perjury.
irtda Hutchenrider, Town Clerk
8
RefNo mappar ownerl owner2 addr city state zip -
138
266 028 GARRAHAN, JOHN P & ANN M 1500 WORCESTER RD APT 511 FRAMINGHAM MA 01701
266 029 SCOTTI, ROSE M TR SCOTCO REALTY TRUST P O BOX 225 WINCHESTER MA 01890
266 030 BARR, JACQUELINE W TRS BARR FAMILY TRUST 2878 N E 24TH COURT FT LAUDERDALE FL 33305
266 034 GAGNON, KATHY LU RYAN CATHERINE W RYAN RLTY TR 15 MARCHANT MILL RD HYANNISPORT MA 02647
267 111 TAYLOR, PETER B PO BOX 206 HYANNISPORT MA 02647
287 015 KARTS, RICHARD C P 0 BOX 575 HYANNISPORT MA 02647
287 016 HYANNIS FIRE DISTRICT HIGH SCHOOL RD HYANNIS MA 02601
287 017 BEARSE, MADELINE BOX 412 HYANNISPORT MA 02647
287 018 J & B HOME REALTY INC P 0 BOX 608 HYANNISPORT MA 02647
287 019 001 CHATHAM REAL PROPERTIES, INC 297 NORTH ST HYANNIS MA 02601
287 019 002 CHATHAM REAL PROPERTIES INC 297 NORTH ST HYANNIS MA 02601
287 019 003 CHATHAM REAL PROPERTIES INC 297 NORTH ST HYANNIS MA 02601
287 020 ANDERSON, ROBERT ALLEN ANDERSON, TAMARA V P 0 BOX 416 HYANNISPORT MA 02647
287 021 001 BERRY, RUTH A TRS RUTH ANDERSON BERRY REV TR P 0 BOX 187 HYANNISPORT MA 02647
287 021 002 BERRY, RUTH A TRS RUTH ANDERSON BERRY REV TR P 0 BOX 187 HYANNISPORT MA 02647
287 022 BROGAN, FRANCIS D BROGAN, MAYE A 1065 LAKEMONT CIRCLE #204 WINTER PARK FL 32792
287 023 001 ANDERSSON, ALLEN ARVID P 0 BOX 306 HYANNISPORT MA 02647
287 023 002 ANDERSSON, PATRICIA K TRS ANDERSON IRREVOCABLE TRUST 1820 BONANZA ST SUITE 201 WALNUT CREEK CA 94596
287 024 ANDERSSON, BARBARA ANDERSSON, BRANDT 9 OROURKE PATH NEWTON MA 02159
287 025 ANDERSON, ROBERT A& TAMARA MASSACHUSETTS AVE HYANNISPORT MA 02647
287 026 BERRY, JOHN R JR TRS JOHN R BERRY JR REVOCABLE T ANDERSON HEIGHTS HYANNISPORT MA 02647
287 027 POWERS, CHARLES A JR & ELSA A BOX 338 HYANNISPORT MA 02647
287 028 SIMON, FREDERICK L 23 AVONSIDE AVON CT 06001
287 032 ANDERSON, GREGG ALAN 9 HOLLY LN OLD FIELD NY 11733
287 033 001 GALLAGHER, RICHARD J 39 MASS AVE HYANNISPORT MA 02647
287 034 SENTNER, MARY JOE TR J P SENTNER QUAL PERS RESID P 0 BOX 182 HYANNISPORT MA 02647
287 035 001 EDWARDS, CHARLES-P LICIA S EDWARDS BOX 368 HYANNISPORT MA 02647
` 2871035 002 EDWARDS, CHARLES R ET ALS %BISHOP, ELIZABETH EDWARDS 10 BUENA VISTA PARK CAMBRIDGE MA 02140
287 145 BROGAN, MAYE A 1065 LAKEMONT CIRCLE WINTER PARK FL 32792
287 146 ANDERSON, GLENN WALDEN 1230 ALGONQUIN RD CROWNSVILLE MD 21032
287 148 POWERS, ELSA L BOX 338 HYANNISPORT MA 02647
287 157 WOLFINGTON, VINCENT A 4530 WISCONSIN AVE 5TH FLOOR WASHINGTON DC 20016
287 158 WOLFINGTON, VINCENT A 4530 WISCONSIN AVE 5TH FLOOR WASHINGTON DC 20016
287 159 WOLFINGTON, VINCENT A 4530 WISCONSIN AVE 5TH FLOOR WASHINGTON DC 20016
288 141 001 SPILLER, ROBERT E & TELMANY, GLORIA E P 0 BOX 32 HYANNISPORT MA 02647
288 141 002 TERMINI, RUDY CAREY, DENNIS M 126 MAGAZINE ST CAMBRIDGE MA 02139
288 141 003 MONIZ, JOHN B JR & CLARE D PO BOX 746 HYANNISPORT MA 02647
288 211 AQUA LEISURE INDUSTRIES INC PO BOX 239 AVON MA 02322
r-
Proof of Publication
LEGAL NOTICES
Town of Darnaft 611ei Zoning Board of Appeals
Notice of public Hearing Under The Zoning Ordinance
. for December 18,:.1998 ,-- -
To a!I.persons interested in or affected,by the Board of Appeais under Sec.1 1 i-of chapter
40A of_the_General.L.aws of.ihe Commonwealth of Massachusetts,and aii amendments
thereto you ere hereby notified that..:. . ,.
7:30 P.M. Hansorr Appeal Number 1998-135
Richard.- amine Henson have petitioned to the Zoning Board of Appeals for a Special
Permit fora FamllyApar iment pursuant to Section 3-1.1(3)(D)of the Zoning Ordinance.The
property is shown on Assessors Map 307.Parcel 201 and is commonly addressed as 20
Canter lane Hyannis.MA in an RB Residential B Zoning District.
7:45 P.M. Joseph` " Appeal Number 1998-136
John It and Jacqueline Joseph have applied to the.Zoning Board of Appeals for a Use .
Variancd to;Section 34.1 Principal Permitted Uses.The petitioners seek permission to be
able to park five(5).vehicles,in fiont.of A house at 72 South Street and-four(4)vehicles in
front of a house at 66 Southa8treet.All clients to be by reservation only with no signs.The
propeMfip show n.onAssesiciewep327,Parcels 139and 140andis comm only addressed
as.72 and 66 South Street{respectively), Hyannis; MA in a PR Professional Residential
Zoning District
8c00 P M: Y6skaiti5 Appeal Number 1998-137
Mark antl KeNy Yusltatns have applied to the Zoning Board of Appeals for a Variance to
Section.2-3:3 Lot;Size Requirements, Section 2-3.5 Contiguous Upland Required and.
Section 3-1.4(5) Sulk Regulations, :in order to permit construction of'a single-family
residence,the property is.shown on Assessor's Map 179,Paroels 40,41;42 f3 43 and Map
180,Parcels 28.29.8 30 and fi 66-mrnoniy addressed as 291,239,225.213 and 257,255,
253 Packett'a Landing,West Barnstable;MA in an RF Residential F Zoning District.
8:15 P.M. Chatham Reai Properties :� Appeal Number 1998-138.
Chatham Real Properties,Inc.has petitioned to the Zoning Board of Appeals for a Special.
Pewit pursuant to Section 4:4.5(1)Change of a Nonconforming Use to Another Noncon-
forrning Use,The petitionerproposes.to demolish three existing structures and construct
seven (7).condominium units. The property is shown on Assessor's Map 281, Parcels
019 001,019.002 8'019.003end rs commonlyaddressed as 537,543.549 ScudderAvenue
(respetbvely) Hyan iisport:MA in an RFA Residential F-1 Zoning District; .
8:30 P M >` Brown '. Appeal Number 1998-139
Jeffrey Brown has appealed the decision of the Building Commissionerwherein the applicant
was ordered to cease operating;e brush clearing/tree pruning business from the subject
premises. the property is shown on Assessors Map 237. Parcels 032 and 033 and is
commonly addressed es 91 Old Neck Road and 2275 Main Street,Barnstable.MA in an RF-
2 Residential F-2 Zoning District.
11:45 fi M .:° "Srown AjiPeat Number 1998.140
Jeffrey Brown he's'petitioned to the Zoning Board of Appeals fora Special Permit pursuant.
to Section 4-4 5(1)Change of:t'Noncotrforrming Use toAnotheeNonconforrriingUse ur uant.
him to continue to operate his brush clearing/tree pruning business from'this.location.The
applicant was ooprod to ce®se opereting from this location by a Business Commissioner,
(See Appeal Number:1998.139).The propertyis shown orf Assessor's Map237:Parcels 032
and 033 and is cornmonlyaddressed as-31 Old Neck Road and 2275 Main street Bamstable,
MA in an RF-2 Residential F 2 7_orung pisMct.
These Public Heanngs willbe'held 1n the Hearing�toom Second Roor New Town Hall,361
Main Street,Hyannis;Massachusetts on We December'16 1998..All.plans and
applications maybe reviewetl(at tlme Zoning Board of Appeals Office Town of Barnstable,
Planning Department;2- South$treat Hyenriis MA
e
Emmett Glynn,Chairman
Zoning Board of Appeals
The Barnstable Patriot
November 26 8,December 011998
°F THE
The Town of Barnstable
MAXNSUBM
9�A Department of Health Safety and Environmental Services
tFDMO'�a Building Division
367 Main Street,Hyannis MA 02601
Office: 508-862-4038 Ralph Crossen
Fax: 508-790-6230 Building Commissioner
TO: Emmett Glynn,Chairman,Zoning Board of Appeals
n
FROM: Ralph M.Crossen,Building Commissioner
REGARDING: 537,543,&549 Scudder Avenue,Hyannisport
Map 287,Parcels 019.001,019.002&019.003
DATE: April 15, 1999
Sometime at the end of March Mr.Bornstein asked me if storing material on site was permissible. I asked
for information concerning the uses on site and especially which ones were still on going,and if any were
over three(3)years old. I was able to determine that cold storage was the only on going use that was not
abandoned and I was able to verify,at least to my satisfaction,that this was the case. I was able to verify
that the cold storage within the past three(3)years was limited in intensity and area;it was based on this
that I rendered a zoning determination that short term storage("a couple of months")was permissible at
that map and parcel.
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°F1HE � Zoning Board of Appeals
Town of Barnstable - Planning Department
sniuvsrnaLE,
230 South Street, Hyannis, MA 02601
9cb 63q. (508) 862-4685 Fax (508) 790-6288 ,
April 9, 1999 -
Ralph Crossen, Building Commissioner
Town of Barnstable
367 Main Street Y;
Hyannis, MA 02601
x,
Reference: 537, 543 &549 Scudder Avenue,`Hyannisport ;
Map 287; Parcels 019.001,_019.002 &019.003
Dear Mr. Crossen,
It has come to the Board's attention that two trailers have been moved onto the above referenced
property. At the Zoning Board of Appeals hearing on April7, 1999, Aaron Bornstein indicated these
trailers are for storage of building materials related to other projects Chatham Real Properties is involved
with. At that hearing Mr. Bornstein also indicated he was given permission by the Building Division to
locate the trailers on the subject property. Please provide the Board with verification that a permit has
been issued, prior to April 7, 1999,.to allow these trailers. ,
If a permit was not issued by Your department prior to April 7, 1999, the Board would like the trailers
removed. The site is located in a RF-1 Residential Zoning District and the trailers are an eyesore to this
neighborhood. Please begin the proper proceedings for the removal of these trailers from the subject site.
Thank you in advance for your cooperation in this Matter.,If you have any questions,'please call Debbie
Lavoie or Alan Twarog at ext. 4785.
ARestfully,
mmett lyn n, Chairman d
cc: Aaron Bornstein a v
Zoning Board.of Appeals File F -
Thomas Geiler,Director HSES .
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°FZHE
The Town of Barnstable
BABNSTABLE, •
Department of Health Safety and Environmental Services
rEOMA'�a Building Division
367 Main Street,Hyannis MA 02601
Office: 508-862-4038 Ralph Crossen
Fax: 508-790-6230 Building Commissioner
TO: Emmett Glynn,Chairman,Zoning Board of Appeals
FROM: Ralph M. Crossen,Building Commissioner
REGARDING: �.537,543,e549.Scudder-Avenue;Hy._annispo
v
-Map 287,:Parcels 019.001;019:002&019.003'
DATE: April 15, 1999
Sometime at the end of March Mr.Bornstein asked me if storing material on site was permissible. I asked
for information concerning the uses on site and especially which ones were still on going,and if any were
over three(3)years old. I was able to determine that cold storage was the only on going use that was not
abandoned and I was able to verify,at least to my satisfaction,that this was the case. I was able to verify
that the cold storage within the past three(3)years was limited in intensity and area;it was based on this
that I rendered a zoning determination that short term storage("a couple of months")was permissible at
that map and parcel.
C� ! LVyt v✓� G� �S/yh�
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The Town of Barnstable
* snRN&rABM ;
9cb MASS.; �0�' Department of Health, Safety and Environmental Services
AIEo '�" Building Division
367 Main Street, Hyannis MA 02601
Office: 508-862-4038 Ralph Crossen
Fax: 508-790-6230 Building Commissioner
February 23, 1999
s
Attorney Michael J. Princi S
Wynn& Wynn, P.C.
310 Barnstable Road
Hyannis, MA 02601
Re. Chatham Real.-Properties; Inc. ,
537,543,-549 Scudder Avenue;,Hyann sport
-O 19001''01 v�'�".,` , , 9 002, O1.9 003
Dear Attorney Princi: „
It is my opinion that the storage use at the Hyannisport candle factory is a pre-existing,
non-conforming right that has not lapsed for 3 or more years. Consequently, it is my
opinion that cold storage is a protected use at this location.
Sincerely,
Ralph M. Crossen
Building Commissioner
RMC/lbn
g990223a
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d
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. § Zoning Board of
§ Appeals No. 1998-183
C §
HATHAM REAL PROPERTIES §
VS. § -Plaintiff's Affidavit in
§ Support of Appeal
ZONING BOARD OF APPEALS, §
TOWN OF BARNSTABLE §
On this / a of V't , 1999, before me, a Notary Public, duly commissioned
and qualified for the Commonwealth o assachusetts personally appeared Donald P. McKeag,
2504 Main Street (Route 6A), Barnstable, MA 02630, who, being duly sworn, deposes and says
that
1. I was the owner of the former Old Harbor Candle Factory on Scudder Avenue in
Hyannisport, Massachusetts from July 11, 1989 to November 7, 1991.
2. During my ownership, I stored boats and other personal item"n t di s.
j
Doi . Mc
Subscribed and sworn to before me this '►�'�day of �� , 1999.
DIANA L.ARUNDALE Notary Public
NOTARY PUBLIC
COMMISSION EXPIRES 7/8/05 My commission expires
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. § Zoning Board of
§ Appeals No. 1998-183
• §
CHATHAM REAL PROPERTIES §
VS.
§ Plaintiff's Affidavit in
§ Support of Appeal
ZONING BOARD OF APPEALS, §
TOWN OF BARNSTABLE §
On this �day of , 1999, before me, a Notary Public, duly commissioned
and qualified for the Commonwealth f Massachusetts personally appeared Daniel St. Pierre, 25
. Rainbow Lane, Mashpee, Massach etts, who, being duly sworn, deposes and says that
1. I am the estate maintenance manager for the properties in Hyannisport owned by R. W.,
Morey Management Inc.
2. From approximately 1991 to 1997 of the Old Harbor Candle Factory property (map 287
parcel 19-003 & 19-001) the wooden warehouse and the cement retail building had been
used for storage of household items, vehicles and the Hyannisport country Club has
leased the wooden warehouse to store turf maintenance equipment.
Daniel St. Pierre
Subscribed and sworn to before me this '
day of . 2 1999.
Notary Public ---
My commission expir
C
-7 r
Barnstable Road
Hyans, MA 02601 \ �� ,
(508)7 i r.3665
Telecopier'V508)775-1244
http://www.0
vynnwynn.com
ATTORNEYS • AT - LAW
Affiliate offices _ March 31, 1999
Raynham t
90 New State Highway
Raynham,MA 02767 A_
(508)823-4567
Boston
VIA HAND-DE IVERY- 10 Copies M
11
Six Beacon Street U
Suite 915
Boston,MA 02108 ~
(617)742-7146 Mr. Emmett Glynn, Chairman MAR 3
Falmouth G
49 Locust street Zoning Board of Appeals
Falmouth,MA 02540 Town of Barnstable
(sob)548-sz3z jpVdW GF BAftNSTABLE
Providence 230 South Street ��E,El BBAFD OF APPEALS
(401)453-5500 Hyannis, MA 02601
Fall River
(508)678-5639
New Bedford RE: Appeal No. 1998-138 - Chatham Real Properties, Inc.
(508)999-6969
Dear Mr. Glynn:
Elizabeth K.Balaschak
Mark W.Bennett In response to your letter of March 18, 1999 referencing the Town attorney's letter
Hollie B.Dufresne
Robert D.Fredericks of March 5, 1999, please be advised that Chatham Real Properties respectfully requests
Thomas Grimmer
that the hearing o forward on April 7, 1999.
Douglas A..Hale g g p
Patricia F.Keane
Catherine M.Kuzmiski'
Thomas A.Martolone
Richard A.Man While Attorney Smith references the case ofMioduszewski v. Town of Saugus, I
t
Brenda J.McNally have read that case and believe that it does not apply to the circumstances of this special
Kevin P.McRoy
Robert F.Mills permit. Firstly, the Town Building Inspector has already rendered a decision dated
Thomas J.M uchiello,Jr.
Charles D.Mulcahy February 23, 1999 (a copy of which is attached hereto as Exhibit A), indicating that the
Hon.James J.Nixon(Ret.) Hyannis"Candle Factory"is a pre-existing non-conforming site as a cold storage location
John J.O'Day,Jr.
Kevin J.O'Malley that has not elapsed for three or more years.
James J.O'Rourke,Jr.`
Joanne M.O'Sullivan
Thomas ri ntes Aaron Bornstein has obtained two additional affidavits one from the former
Michael J..Princi ,
Rebecca C.Richardson caretaker Daniel St. Pierre(a current Town employee) (Exhibit B) stating under oath that
Janice E.Robbins
William Rosa' the Candle Factory was used as a warehouse from 1991 to 1997, and the affidavit of
Louis V.Sorgi,Jr.
Suzanne G.Tedeschi Donald P. McKeag,the former owner indicating that he used the site as storage from 1989
John A.Walsh
Michael F.Walsh to 1991 (Exhibit Q.
Paul F.Wynn
Thomas J.Wynn
In further support of the pre-existing non-conforming use as a cold storage site,
Of Counsel I attach a copy of the Master's decision in the Barnstable Superior Court case of Building
Hon.Robert L Steadman(Ret.)
Christopher J.Muse Inspector of the Town of Barnstable v. Old Harbor Industries, Superior Court Case No.
James J.Lombardi,III 39412 which report was filed with the Court on June 24 (Exhibit D
Hon.James F.McGillen,II(Ret.) � � 1980 \E ) and confirmed
by the Court on July 10, 1980 (Exhibit E). In that case, the Town of Barnstable brought
an action alleging that the site was not a pre-existing non-conforming site. The Building
Inspector sought a permanent injunction against the then Candle Factory owners
'Admitted in Massachusetts and Rhode Island
prohibiting the then use by the Candle Factory for retail sales and storage. The Court's
Master specifically found that the"singular and primary functions" of the warehouse since
1912 has been storage.
That decision was never modified on appeal and stands as res judicata with respect
to the pre-existing non-conforming use of the premises for storage. In addition, I attach
a copy of the case of Powers v. Building Inspector Town of Barnstable, 363 Mass. 648
(1973)(Exhibit F). This was a precursor case involving the use of the very same premises.
This was a petition by abutters against the Building Inspector to compel the Building
Inspector to act against the Old Harbor Realty Trust, the then owners of the site. The
Court extensively discusses the use of the site and confirms the use since 1912 as
substantially a dead storage warehouse facility.
While I recognize that this application has again"touched a nerve" with several
abutters, the ZBA should recognize that an application for a greater number of residential
condominium units was approved several years ago by your Board. The then developer
never contested the abutter's appeal, so the construction never forward (Exhibit G).
Aaron Bornstein recently appeared before the Conservation Commission, and it
was suggested that that Board would be more receptive to the application if the number
of units were scaled back, the green area increased, and the distance from the 50' buffer
be greater. Mr. Bornstein has recognized that request and has redrawn the plans, reducing
the units from 7 to 5 and increasing the green area by approximately 3,000 square feet.
In addition,the buildings moved 6' away from the 50'buffer. This plan will be submitted
directly from Mr. Ojala.
The ZBA over the last twenty years has received overwhelming information
supporting the current petitioner's application for special permit as a pre-existing non-
conforming use of warehouse and storage. Furthermore, it is unrebutted that the
warehouse building, manufacturing buildings, and school house have existed on the
property as non-conforming buildings well before zoning. As pre-existing non-conforming
structures(these are certainly not residences), they are pre-existing and non-conforming.
Certainly,the proposed use(for residential condominiums),with lesser density, a departure
from commercial, storage, or manufacturing use,-and a dedication of the property for
residential purposes, is quite consistent with the Town's By-law and does not denigrate
from the intent of the By-law.
While I recognize that the ZBA looks to the Town attorney for counsel, I trust that
your letter does not indicate that your mind is closed on this issue of non-conforming use.
We attorneys are the butt of many jokes, and certainly it is appropriate to point out that
five attorneys assessing the same set of facts may come out with five separate opinions.
In this case, the ZBA has correctly and properly asked for additional information
supporting the petition. The petitioner has produced additional affidavits, additional
documentation,two Court decisions involving the same parcel, and a Building Inspector's
letter, which strongly support the petition for special permit.
I respectfully suggest that if the Board were to contravene prior Court decisions
and prior factual determinations taken by prior ZBA's, that decision will probably be
overturned on appeal and the matter remanded for a determination as to the granting of
a special permit.
Please provide Mr. Bornstein and me with any new opposition which you have
received. In addition, if the Planning Department is preparing and delivering to you any
new information, I would appreciate obtaining copies a few days before the meeting.
Thank you in advance for your anticipated cooperation.
Very truly yours,
WYNN& W , P
c ae J. rmci
MJP:smo
Enclosures
cc: Aaron Bornstein
PS: I have located references to the site in a book entitled, "Old Hyannis Port' by Paul
Fairbanks Herrick and Larry G. Newman dated 1968. Enclosed are the relevant
pages marked as Exhibit H.
l
f
COMMONWEALTH OF MASSACHUSETTS T
SUPERIOR COURI�
BARNSTABLE, ss . @RRNSTA'2LE.. uperior Court
to . 39 412
FILED JUN 241980,
BUILDING INSPECTOR of the
TOWN OF BARNSTABLE
V. ) Master's Report
OLD HARBOR INDUSTRIES )
The Building Inspector of the Town of Barnstable
brought an action alleging that the defendant Old Harbor
Industries is carrying on activities at a location in
Hyannisport which are illegal because they are in .violation
of the zoning by-law of the Town of Barnstable and more
importantly, that these activities are illegal because they
are beyond the scope of any protection which such location
may have once enjoyed as * a prior non-conforming use.
-An abutter, Charles Powers , was allowed to intervene
.� making the same allegation and both the Building Inspector
and the intervenor- seek a permanent injunction against the
defendant's present activities at the Hyannisport location..
The defendant alleges that the activity sought to
be enjoined constitutes a lawful non-conforming use, eAitled
to the protection afforded by the by-law, -the general laws
and cases `cited thereunder and therefore not a proper subject
for the injunction requested.
I find and rule that the defendant's contention is
correct.
i
The subject premises are located in that part of
the Town of Barnstab le 'which is designated as Residence F-1.
The sole use allowed in such districts is a detached one-family
dwelling. The use presently being made of' the premises is not
that of a one-family dwelling. It is used as a storage ware-
house in connection with a commercial venture whose buildings
are located in close proximity to the subject premises and
also in nearby Hyannis. Thus , in the absence of any other
factor . this use of the premises would be illegal. The defen-
dant has invoked the provisions of the Zoning By-Law of the
Town of Barnstable which states;
"Any lawful building or any lawful use of a building
or .premises, or part thereof, existing at the time the zoning
by-law was originally adopted in the area in which such build-
ing is located may be continued although such building or use
does not conform to the provisions hereof. "
Pursuant to the standards enunciated by the Massachu-
setts Courts a comparative analysis must be made between the
use in existence on the premises at the time of the adoption
of the requirements 'of the by-law and the present use for which
injunctive relief is :sought.
The subject premises and related issues have pre
viously been aealt .with by the Supreme Judicial Court in the
case of Powers v. Building Inspector of Barnstable, 363 Mass . '
648. X,
The parties have agreed and stipulated that the
facts as .found by the Court in that case are binding in this
case and therefore reference is made to and reliance placed
on that decision (1) for the complete background of the case;
(2) for certain of the specific findings central to the dis-
position of this case; and .also (3) to ascertain the level of
activity which the Powers court would deem to be within the
scope- of protection of the prior lawful non-conforming use,
THE PRIOR USE
The premises in question are referred to as the
"warehouse." The following is the history of this warehouse.
"The warehouse is a corrugated metal building of
one story, sixty feet by one hundred feet in size, erected
in 1912. It was thereafter used by members of the Phinny
family for a variety of purposes including the following:
the storage and,packaging of coal and wood for sale and
`r delivery to customers ; the storage -of ice boxes for sale;
the storage of coal trucks , oil trucks , pumps and drums ,
used- in a retail .fuel oil business ; the winter storage of
fishing and marine paraphernalia; the rental of space for
the storage of second hand furniture.
"Some aspects of the coal and fuel oil business were
. conducted in portions of the warehouse from about 1920 until
the Phinny family sold this business in 1959 . The furniture
storage occurred ,in about 1960 and lasted for about two years .
The storage of ice boxes occurred between -1930 and 1950. The
storage of fishing gear occurred during the winters from about
1938 or 1939 until 1959. "
The Town .of Barnstable adopted its first -zoning by-
law in 1949 and revised the same in 1956. At no time did the
by-law expressly permit the uses previously described, as the
premises were located in .a residential district.
THE PRESENT USE.
The warehouse is one of several buildings., owned by
Old Harbor Candle or their corporate affiliates in the Hyannis
area. The business of Old Harbor is the manufacture and sale
of candles, both wholesale and retail. Old Harbor has annual
gross sales in excess of one million dollars and sells its
products throughout 'the' United States and Canada.
At other locations are a manufacturing plant, a
finished goods warehouse, a carton warehouse, a retail store,
and another storage warehouse.
The warehouse in question is the same dimensions as
found by the Court in the Powers case. It. is of one story
1
inside with a poured concrete floor and is nothing more than a
large �room. There are no partitions , walls or doors inside the
warehouse and .it is open to the roof with the exceptions of
framing and insulation. There are no desks, offices, cabinets
f
i -
or other items usually associated with the administrative
aspects of a business., As one faces the warehouse from the
street there is located at the left rear two overhead loading
doors which open into an elevated concrete loading dock. These
doors and dock look out onto other property of Old Harbor Candle
and are substantially hidden from the view of the casual observer.
The warehouse is the third in a string of three buildings owned
by Old Harbor and located side by side on an asphalt apron.
The building adjacent to this warehouse is the "schoolhouse" as
described in the Powers case, and the building adjacent to the .
schoolhouse is the building located on parcel one as described
in the Powers decision.
At present, the warehouse contains primarily the raw
materials and component parts which go into the making of can-
dles ; wax, wicks , glassware. It also contains some amount of
actual finished products . All of these items are stored in
cardboard cartons which fill. the warehouse against the walls
to a height of approximately eight feet. With the exception
of two aisles on each side, the entire floor area of the ware-
house is likewise taken up by cardboard boxes stacked as high
as ' eight feeto No function takes place within the wareho'isel
." other than- the placement, storage and removal of these card-
board boxes, tr
All 'deliveries of items to be stored come from one of
annis area.
the other locations of Old Harbor Candle in the Hy
3
No supplies are shipped or delivered to the'.warehouse direct
from 'any supplier and no items which leave the warehouse go
directly to ,any purchaser, either retail or wholesale.
Approximately twice each day in the months of June
through November a four wheel truck, consisting of a cab
and box type van arrives at the warehouse for the delivery or
removal of stored goods . The truck moves down a driveway on
the left rear of the building .to the loading dock where the card-
. r�
board boxes are either removed or . stored. ' The approximate time
it takes for such loading or unloading is one half hour per
trip. With the exception of such time as the truck and its
driver is engaged in these activities , no one is present at
the warehouse. During the months of December through May
these trips occur approximately three times per week.:
THE TEST.
In evaluating the present use and determining whether
or not it is protected, the following questions must be answered
1<11 Does the use today reflect .the nature and purpose o
the use prevailing when the zoning by-law took effect?
Based on the findings of the Court in the Powers case
and the evidence presented at hearing and my view of th6 premise
I find that it does . The singular and 'primary . functions of the
warehouse since 1912 has been storage. The types and kinds of
items which have been stored over the years has varied .from
time to . time, but the basic use of 'the warehouse has remained"
constant.
Any storage of goods must of necessity involve initial
delivery and subsequent removal. The fact that for the period
of time between 1920 and 1959 a coal and fuel oil business was
being conducted from the warehous.e involving the use of coal
trucks, oil trucks and pumps and drums used in a retail fuel
oil business leads to the inevitable conclusion that vehicles
must have been moving to and from the warehouse on a regular
basis and perhaps more often than daily.
The present use and level of activity is well within
the nature and purpose of such earlier use,
2. Is there a difference in the quality or- character
as well as the degree of use?
I find no change in the quality or character of the use
or the degree of use which would constitute an expansion or ex-
tension. The prior use according to Powers included some aspects
of the coal and fuel oil business 'as well as the storage of items
in connection with that business . Given the character of a
business of delivery of coal and fuel and_ sto'rage of same, the
present use which is clean, quiet and involves a minimum of
vehicular movement is , if anything, an improvement in the
quality or 'character of the use (storage) and a lessening in
the degree.
3. . Whether the current use is different in kind in
its effect on the neighborhood? ,
The present use has little or no effect on the
neighborhood.
No noise emanates from the warehouse because no
activity takes place there unless a truck is making a pickup
or delivery. Such deliveries take place twice a day and the
activity lasts one-half hour each. The loading and unload-
ing takes . place in an area which is essentially obscured
from view.
Leaving aside for the moment the specific test of' .
Chuckran, 351 Mass . 20, and Powers , certain language of the
Powers case on the overall history of the Old Harbor opera-
tion is significant.
With respect to the "schoolhouse", one of the other
buildings on the premises , the Court stated:
"During .the 1950 's the first floor was used for mis-
cellaneous storage in connection with a business conducted by
the Phinny family in the warehouse; and this- floor is still
used for miscellaneous storage. "
"We hold with reference to the schoolhouse building
(a) - that the present use of the first floor thereof for mis-
cellaneous storage is lawful as a continuation of a non-
conforming use."
Thus , the Court: found that the use by Old Harbor
of that building for storage in connection with: their present
business was consistent with the use` which- the Phinny family
made of the premises for storage in connection with their business.
s
With respect to the warehouse and in enjoining the
earlier activities there, the Powers court stated that "the
warehouse building which formerly housed a rather dormant
operation involving primarily "dead storage" has now become
a "veritable beehive of activity essential to the operation
of the Candle Co•. 's .wholesale 'business described above."
Those earlier activities which the court classified
as "rather dormant" encompass ,--at least impliedly, a wider
range of activity than the activity which now takes place at
the warehouse, which is a very quiet operation of storage only.
The plaintiff and intervenor have requested a defini-
tion and interpretation of the term "dead storage. " Buch such
a definition or interpretation is not essential. or .critical to
a declaration of the rights of the parties to this case, as the
findings do not hinge on any such definition if indeed one is
possible and I make no finding or ruling on that particular ter
I find and rule that the present use of the warehouse
as described above is legal inasmuch as it is-a continuation of
a prior and lawful non-conforming use.
zThe intervenors have in their memorandum argued that
an abandonment of that use has occurred
Leaving to the Court the question of the propriety
of that issue being raised, .no evidence was presented bearing
at
y
directl on that issue and from all other. evidence offered
f
i
i i
a
the hearing, I do not find that the defendants ever demon-
strated any intent to abandon their use of the warehouse
for storage.
{
Va W. K r "
i
j
r�
d
I
JAN-22-99 0401*7 PM HOLLY MANAGEMENT 508 775 8789 P. 15
COMMONWEALTH OF b%ASSALHU5ETT,
SUPERIOR COURT
�4BARNSTABLE,SS. No. 39412
BUILDING INSPECTOR Of )
+' the TOWN OF BARNSTABLE, )
�l Plaintiff MOTION TO CONFIRM
j ) MASTER'S REFORT
V. AND FOR
ti ) ENTRY OF JUDGMENT THEREON
j� OLD HARBOR INDUSTRIES ET AL. ) `
j` Defendants )
The Defendants move that the Master' s Report in the
iabove Case be confirmed and that judgment enter in accordance
,. therewith.
old Harbor Industries, et al
i� By their Attorneys, i
FERN, AN�RSO DONAti�JE & ,TONES
IL
P° WN
By
(� �AO. � , rd c. An erson, Esq.
43 ain St. - Box 518
�Q iS v Hyannis, MA 02601
C y/' �� Tel : (617) 775-5625
ef
fo 40
s40
- i " U� � • �,�' ter a� � • . . ,
MA: Mass. Supreme Judicial / Appeals Courts
v. BUILDING INSPECTOR OF BARNSTABLE, 363 Mass. 648 (1973)
296 N.E.2d 491
.�RLES A. POWERS & others vs. BUILDING INSPECTOR OF BARNSTABLE.
Supreme Judicial Court of Massachusetts.
Barnstable.
October 6, 1972.
May 17, 1973.
Present: TAURO, C.J. , QUIRICO, BRAUCHER, & KAPLAN, JJ.
Zoning, Nonconforming use of structure. Laches.
Review of cases dealing with nonconforming uses under zoning
ordinances or by-laws. (651-658)
On a petition for a writ of mandamus to compel the building
inspector of a town to enforce its zoning by-law and so to
prohibit alleged unauthorized use being made of two parcels of
land, a refusal of the trial judge to issue the writ as to one
parcel was proper where its use as a candle factory and store
was but a continuation, although to a greater degree, of a use
prevailing at the time of adoption of the zoning by=law, and
the issuance of the writ as to the second parcel was proper as
to a building which since 'the passage of the zoning by-law had
been converted from primarily "dead" storage to active
merchandise processing, but should be modified as to another
building to reflect that while the use of the second floor for
administrative .offices did not constitute a continuation of a
nonconforming use, the use of the first floor for
miscellaneous storage was valid. [658-663, 664-665]
PETITION for a writ of mandamus filed in the Superior Court on
June 21, 1968.
The case was heard by Bennett, J.
C. Michael Sheridan (John P. Garrahan with him) for the
petitioners; Harold L. Hayes, Jr. , for the interveners Ann
Stevens Atlee & others, also with him.
Stephen C. Jones for the interveners Old Harbor Candle
Company & others.
QUIRICO, J.
This is a petition for a .writ of mandamus to compel the
respondent building inspector to enforce the zoning by-law of the
town of Barnstable. and thereby,to prohibit. the._alleged.
unauthorized use being made of two parcels of land, with
buildings thereon, located on Scudder Avenue in the Hyannisport
district of the town.
Page 649
The petition was originally brought by nine persons owning land
located adjacent to or in the vicinity of the two parcels in
question. Later twenty-seven additional persons owning property
in the same vicinity were allowed to intervene as parties
petitioner. All thirty-six of these persons will be referred to
collectively as the petitioners.
i
The owners of the two parcels- in question are Marvin Blank and
Harold Perkins, Trustees of Old Harbor Realty Trust (Realty
Trust) , 'and the lessee of both parcels is the Old Harbor Candle
Co. (Candle Co. ) _ Both the Realty Trust and the Candle Co. were
allowed to intervene.
After a hearing on the petition the judge filed a document
entitled "Findings, Rulings, and Judgment, " which concluded with
an order that judgment enter (a) denying the petition as to the {
' Date Printed: January 14, 1999 1:47:00 PM
MA: Mass. Supreme Judicial / Appeals .Courts
parcel on which there was a building used for the manufacture and
sale of candles (herein referred to as "Parcel 111) and (b) for
issuance of the writ as to the other lot on which two buildings
described as the Warehouse and the Schoolhouse were located
(herein referred to as "Parcel 2") . [fnl]
The case is now before us on the appeals of thirty-four
petitioners, the Realty Trust and the Candle Co. from the judge's
"Findings, Rulings, and Judgment." (G.L.c. 213, § 1D, inserted by
St. 1943, c. 374, § 4, as amended by St. 1957, c. 155. ) The
building inspector did not appeal, and no brief was filed by him
or in his behalf in this court.
General Laws c. 213, § 1D, as amended, provides that
Page 650
an appeal from an order of the Superior Court decisive of the
issues on a petition for a writ of mandamus shall be governed by
the statutes applicable to appeals in equity. It provides further
that " [u]pon such appeal all questions, whether of fact, of law
or of discretion, which were open at the hearing before . . . the
superior court . . . shall be open to the same extent as before
such . . . court." The evidence is reported. It includes certain
photographic and documentary exhibits but consists in large part
of oral testimony. The judge found facts and reported them at the
request of the Realty Trust and the Candle Co. G.L.c. 214, § 23,
as appearing in St. 1947, c. 365, § 2. "We are bound to examine
the evidence. The findings of fact made by the trial judge,
however, including inferences of fact when dependent upon
credibility, are to stand unless plainly wrong. " Chartrand v.
Registrar of Motor Vehicles, 347 Mass. '470, 473. Crawford v.
Building Inspector of Barnstable, 356 Massa 174, 175.
Ouellette v. Building Inspector of Quincy, 362 Mass.. 272, "
273.
A brief summary of certain facts common to both parcels of land
in question will be helpful in presenting the legal issues raised
by these appeals. The town adopted its first zoning by-law in
1949 and thereby placed both parcels in a Residence A district. A
major revision of the by-law in 1956 changed the classification
of both parcels to a Residence C. district. Both the 1949 and
1956 by-laws included the provision that any lawful building or
lawful use of a building or premises or part thereof existing at
the time the by-law was adopted might be continued, although such
building or use did not conform to the provisions hereof. This
saving clause for nonconforming buildings and uses was in accord
with the statutory provision .(G.L.c. 40, § 26, as appearing in
St. 1933, c. 269, § 1, and as amended by St. 1952, C. 438, all
repealed by St. 1954, c. 368, § 1, and superseded by G.L.c.
40A, § 5, inserted by St. 1954, c. 368, § 2) that a zoning "ordinance
or by-law or any amendment thereof shall not apply to existing
buildings or structures, nor
Page 651
to the existing use of any building or structure, or of land to
the extent to which it is used at the time of adoption of the
ordinance or by-law', but it shall apply to any change of use
thereof..and to any alteration of a building or structure when the
same would amount to reconstruction, extension or structural
change, and. to any alteration of a building or structure to
provide for its use for a purpose or in a manner substantially
different from the use to which it was put before alteration, or
for its use for the same purpose to a substantially greater.
extent."
The uses made of the two-parcels• by the present occupant, the
Candle Co. , and by its predecessor occupants at times material to
the decision of this case will be discussed in more detail later
in this opinion. It is sufficient at this point to state that
none of the uses being made of the two parcels and the buildings
L - -
Date Printed: January 14, 1999 1:47:00 PM
a
MA: Mass. Supreme Judicial / Appeals Courts
thereon when this case was started and which are continuing were
included in the various uses expressly permitted in residential
districts under either the 1949 original zoning by-law or the
1956 revision thereof which is still in effect. Nevertheless, the
Realty Trust and the Candle Co. contend that the present uses are
lawful because they come within the protection of the statutory
and by-law provisions excluding from the application of the
by-law any lawful nonconforming uses existing when the by-law was
adopted or amended. [fn2]
The first statute enabling cities and towns of this
Commonwealth to adopt zoning ordinances or by-laws was St. 1920,
c. 601 (see now G.L.c. 40A) , and § 7 of that statute provided
that " [t]his act shall not apply to existing
Page 652
structures nor to the existing use of any building, but it shall
apply to any alteration of a building to provide for its use for
a purpose, or in a manner, substantially different from the use
to which it was put before the alteration. " All of the zoning
enabling statutes since that time have included a provision in
substantially the same language protecting the right to continue '
nonconforming uses. G.L.c. 40, § 26, repealed by St. 1954, c.
368, § 1, and superseded by G.L.c. 40A, § 5, inserted by St.
1954, c. 368, § 2.
During this period of more than a half century in which
municipalities have been permitted to adopt zoning ordinances and
by-laws, this court has been required to decide a large number of
cases involving the question whether a use being made of premises
which was not expressly authorized under the applicable zoning ;
ordinance or by-law was nevertheless protected as a lawful
nonconforming use. Each case involved and required a
determination and consideration of the facts of the particular
case measured against the language of the statute and ordinance
or by-law and, ultimately, a decision that there was or was not a
protected nonconforming use. By this process there has developed
a body of case law which gives guidance and suggests tests to be
applied in deciding such cases. A review of some of these decided
cases may be helpful.
Cochran v. Roemer, 287 Mass. 500, 507-508, is one of the
first to suggest a test to be applied. That test was whether the
use under attack was "different in kind" from the nonconforming
use in existence when the zoning ordinance was adopted. We 'said,
at 508, that it "is not different in kind . . . simply because it
is bigger. " [fn3] In
Page 653
Building Commr. of Medford v. McGrath, 312 Mass. 461, at 462,
we said that "a nonconforming use of the same premises may be not
only continued but also increased in volume. ". In Medford v.
Marinucci Bros. & Co. Inc. 344 Mass. 50, at 60, we said: "The
distinction is between an increase in the amount of business,
even a great increase, which does not work a change in use, and
an enlargement of a nonconforming business so as to be different
in kind in its effect on the neighborhood. Finally, in
Bridgewater v. Chuckran, 351 Mass. 20, we said, at 23:
"Recent cases have emphasized three tests for determining whether
current use of property fits within the exemption granted to
nonconforming uses. (1) Whether the use reflects the 'nature and
purpose' of the use prevailing when the zoning by-law took
effect. [citations omitted. ] (2) Whether there is a
,difference in the quality or character, as well as the degree, of
use. . . . (citations omitted. ] (3j Whether the current use is
'different in kind in its effect on the neighborhood. '" .
[citation omitted. ]
It is inevitable that the development and application of a rule
of law governing nonconforming 'uses on a case by case basis, with
Date Printed: January 14, 1999 1:47:00 PM
MA: Mass. Supreme Judicial / Appeals Courts
the result depending almost entirely on the particular facts of
each case, should produce two separate and distinct lines of
cases, one holding that the disputed use, often despite some
changes therein after the adoption or amendment of the zoning
ordinance or by-law, is protected as a lawful nonconforming use,
and the other holding that the use, although lawful when the
zoning ordinance or by-law was adopted or amended, has so changed
that it is no longer protected. The following are some of our
decisions most frequently cited for each conclusion.
(a) Cases Upholding the Nonconforming .Use. In Cochran v.
Roemer, 287 Mass. 500, 507-508, a small fuel business
"conducted by an old system . . . at retail with comparatively
few sales to other dealers, " was changed to "a very large
business [conducted] by the most modern appliances for the most
part by sales to the ultimate consumer
Page 654
but to a considerable extent to other dealers for resale. " In
Medford v. Marinucci Bros. & Co. Inc. 344 Mass. 50, 51-53,
the disputed use consisted of the laying of a new fifty-car side
track parallel to a railroad's existing and allegedly
nonconforming tracks, and the use of the siding for the unloading
of large quantities of fill transported from New Hampshire for
use in highway construction in this Commonwealth. In Morin v.
Board of Appeals of Leominster, 352 Mass. 620, a nonconforming
one-man printing business was conducted in a barn during the
summer months and moved into a dwelling house on the same lot,
during the winter months. The use of the barn for the
nonconforming printing business the year round, after insulation
and interior improvements of the building, was upheld. In
Crawford v. Building Inspector of Barnstable, 356 Mass. 174,
we held a part of a disputed use lawful and a part unlawful. We
upheld the alteration of a nonconforming small hotel building by
enclosing an open porch thereby increasing the ground floor area
of the building by no more than three to four per cent. The use ,
held unlawful is described below. In McAleer v., Board of
Appeals of Barnstable, 361 Mass. 317, 322-324, we held that a
lawful nonconforming use of property in a "Residence'_' district
for the operation of an inn during the summer months permitted
the inn to be operated during the entire year.
(b) Cases Limiting the Nonconforming Use. In Lexington v.
Bean, 272 Mass. 547, 553, we held that the use of a building by
the defendant "for the commercial purpose of repairing motor
vehicles for hire is `substantially different' from a use of it
by a person residing on the premises for the .purpose of repairing
motor vehicles belonging to him as incidental to his trucking and
express business." In Marblehead v. Rosenthal, 316 Mass. 124,
we held that a lawful nonconforming use consisting of the
operation, on a small scale, of the business of a tailor and
furrier in one store, with some hand sponging and cleaning of
clothes by the members of a'family and two employees, did not
permit its change and expansion to
Page 655
three stores with complete mechanical „equipment for a dry
:cleaning establishment employing sixteen or seventeen people,
only one of whom was a tailor._ In Everpure Ice Mfg. Co. Inc. ,v.
Board of Appeals of Lawrence, 324 Mass. 433, we held that a
fuel oil business was not so intrinsically and inherently related
to an existing nonconforming ice manufacturing business as to be
fairly construed as included within the latter use. Lynn v.
'Deam,' 324 Mass. 607, involved a change in the use of a building
from a dance hall to a restaurant or store in which food was
served or sold. Seekonk v. Anthony, 339 Mass. 49, involved a
change from "a makeshift set of arrangements for furnishing to
dump trucks in one place all,the ingredients of concrete" to "a
modern plant using more elaborate fixed facilities for use in
connection with more complicated vehicles [and to] a
Date Printed: January 14, 1999 1:47:00 PM
MA: Mass. Supreme Judicial / Appeals Courts
substantial supply terminal for cement mixer trucks. " We held
this to be more than "a permitted increase in the volume of
business done in an existing plant, " and that it amounted to a
"change in and enlargement of the plant which made it 'different
in kind in its effect upon the neighborhood. '" Hinves v.
Commissioner of Pub. Works of Fall River, 342 Mass. 54,
involved the attempted enlargement of a nonconforming grocery
store business by the addition of a commercial catering service
involving the cooking of food. In Massachusetts Broken Stone
Co. v. Weston, 346 Mass. 657, where the nonconforming use
included the sale of crushed stone produced entirely from a
quarry on the premises, we held, at 662-663, "that the
importation of stone to be processed and sold on the premises as
stone would be a change in use, and the petitioner has no right
thereto." In Brady v. Board of Appeals of Westport,
348 Mass. 515, we held that a nonconforming use consisting of four or five
boats associated with the premises moored or tied to a twelve
foot pier could not be changed to a new structure consisting of
two piers, one extending out into the water a distance of eighty
feet and the other a distance of ninety feet, a barge measuring
twenty-eight by ninety feet in size permanently affixed to
Page 656
the shore, and commercial boat repair and service facilities. In
Building Inspector of Malden v. Werlin Realty, Inc.
349 Mass. 623, we held that the use of premises for the manufacture and
incidental storage of oxygen could not be justified on the basis
of a prior lawful nonconforming use of the premises for the
storage of ice cream cones and straws. In Bridgewater v.
Chuckran, 351 Mass. 20, we held that the use of premises as a . .
ready mixed concrete manufactory and center for supply to others
could not be justified on the basis of the prior lawful
nonconforming use of the premises as a house builder's main yard
in which the mixing of concrete was merely incidental to his
general business. In Kreger v. Public Bldgs. Commr. of
Newton, 353 Mass. 622, there was a lawful nonconforming use -of
premises by the Luther Paul Co. (Paul) for the storage and sale
of fuel oil and service to consumer customers. The use involved
three fuel storage tanks having a total effective capacity of
56, 000 gallons and an average monthly sale of less than 200, 000
gallons. Paul then made an arrangement with another company,
Northeast Petroleum Company (Northeast) which sold fuel oil to a
number of retail distributors whereby Northeast would supply oil
at Paul's tanks for delivery to the tank trucks of Paul and of
Northeast's customers. Without increasing the tank storage
capacity, the total monthly distribution from Paul's tanks
increased six or seven times to as much as 1.4 million gallons in
one month, thus increasing the frequency with which the tanks had.
to be refilled. Almost ninety per cent of the oil distributed
from the tanks thereafter was to Northeast's customers. We held,
at 627: "For zoning purposes, there was a change in the kind of
use. . . The new wholesale use predominates. . . . We need not
decide whether every addition to a retail operation of some
wholesale business would overload a nonconforming or other legal
use. Here the businesses are different in an aspect with which
the use regulations in the zoning ordinance are directly
concerned, and there has resulted a significant increase in use.
. . . It is beside .the point
Page 657
that under our many cases this [increase in volume of business)
would have been protected had it resulted merely from the growth
of Paul's retail business without expansion of plant. The ry
increased activity with the change to a wholesale business shows
that the change has been substantive. " Cullen v. Building
Inspector of No. Attleborough, 353 Mass. 671, 676, involved an
increase in milk production coupled with a tenfold increase in
the dairy herd and other "extensive activities" which we held
"compel the conclusion that there was a change" and that " [f]or
purposes of the zoning laws .the aggregate of all these operations
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amounts to a difference in quality rather than in degree alone." '
In Jasper v. Michael A. Dolan, Inc. 355 Mass. 17, at 24, we
said: "The present case involves the addition of a product (hard
liquor) sold by a store previously licensed to sell only beer and
wine. We are of opinion that this addition does not satisfy the
first and second tests laid down in Bridgewater v. Chuckran
. . . (35] Mass. 20, 23] . In other words, the sale of hard liquor
(1) does not reflect the nature and purpose of the preexisting
nonconforming use and (2) differs in the quality or character, as
well as the degree, from the prior use. . . . Similarly, the
operation of a separately conducted all-alcoholic package store
is substantially different from the sale of beer and wine in
connection with a food store. Accordingly we hold that the sale
of all-alcoholic beverages at the . . . premises constitutes a
new use and is in violation of the zoning ordinance." In
Crawford v. Building Inspector of Barnstable, 356 Mass. 174,
the owners of a small hotel or club had a lawful non-conforming
use which included the beaching or mooring of' boats in the bay on -,
which the hotel property fronted. They then built a pier eight
feet wide extending out into the water a distance of 285 feet,
with a deck fifteen by forty-eight feet in size forming a "T" at
the outer end of the pier. The pier was for commercial, not
residential purposes. In rejecting the contention that the pier
was a lawful continuation of the nonconforming use, we said, at
179-180: "The pier . . . makes a use of the water side
Page 658
of the premises which is different in quality, character and kind
as well as degree from that which was made of it before." [fn4]
Having noted the principal cases comprising the two lines of
decisions on the status of nonconforming uses, particularly with
reference to changes or extension in such uses after the adoption
of zoning regulations, we must apply the results of those
decisions to this case. We shall do so separately as to each of
the two parcels of land and the three buildings.
1. Parcel 1. This is the parcel on which the building
presently used for the manufacture and sale of candles and other
merchandise is located. The building, having one story and a
basement, has been in existence in its present location and size
since an undetermined date, but prior to 1950. The individuals
who formerly owned this parcel (the Johnson family) , and the
Candle Co. which they caused to be formed in 1946, used most of
the first floor of the building for the manufacture and sale, at
wholesale and retail, of candles and accessories, and used a
small "L" at the front of the building as the administrative
office for that business. They used part of the basement for
storage and rented part of it out to others for storage. These.
uses continued to 1954.
In 1954 a new group of persons (the Stein family) became
stockholders of the Candle Co. The Candle Co. continued to use
the building for the same general purposes as before 1954 except
for a substantial increase in
Page 659
the volume of the business which was conducted on or from the
premises. The Stein family added to the line of merchandise other
than candles. They 'increased the number of wholesale accounts,
thus 'increasing"the volume of candles manufactured on the
premises and the volume ,of merchandise purchased for resale, and `
they also increased the volume of merchandise shipped out to
wholesalers both by parcel post and by truck. The candle
manufacturing operations occasionally extended beyond the
daylight hours into the evening. The retail sale business was
operated on the premises from the spring to early December of - -
each year, and in the summer months' it was operated seven-days a
. week from morning until nine or ten in the evening: a
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In 1957 the Realty Trust purchased Parcel 1, and the
interveners Blank and Perkins became the sole stockholders and
officers of the Candle Co. Under their management the Candle Co.
increased the variety of the merchandise which it sold both at
wholesale and retail, adding a variety of "gift shop" and other
noncandle related items. It also sold at wholesale a greater
variety of candles not of its own manufacture. There has been a
large increase in traffic on the street where the Candle Co. is
located and in the number of persons stopping at its retail store
which is now open seven days a week throughout the year. Although
the Company provides forty off-street parking places, the number
is not adequate on certain occasions. Commercial buses bring
groups to the store and occasionally the buses park there with
their motors running for more than a half hour.
' The Realty Trust purchased Parcel 2 in 1962. Thereafter two
types of activity were moved out of the building on Parcel 1. The
administrative office for the business was moved from the "L" of
that building to the second floor of the Schoolhouse building on
Parcel 2, and the shipping of merchandise to wholesale customers
was moved to the Warehouse building on Parcel 2.
The judge found that the present use being made of Parcel 1 and
the building thereon "represents a continuation
Page 660
of the use prevailing at the time of adoption of the . . .
[zoning] By-Law; that . . . such use was lawful at the time of
said adoption; [and] that there is a difference in degree of such use, but not in the quality or character thereof. " We agree with
those conclusions. There was no error in that part of the order
which denied a writ of mandamus as to Parcel 1.
2. Parcel 2. There are two buildings located on this parcel,
one being identified as the "Schoolhouse" and the other as the
"Warehouse. " This parcel was owned by members of a family named
Phinney from at least 1912 until 1962 when it was sold to the
Realty Trust. On the latter date there was a third small wooden
building, commonly called the "Shack" located on the parcel but
it has since been torn down and is not involved in this decision.
The relevant descriptions and uses of the Schoolhouse and the
Warehouse follow.
(a) The Schoolhouse. This is a� two-story wooden building
resembling a dwelling house. During the 1950's the first floor
was used for miscellaneous storage in connection with a business
conducted by the Phinney family in the Warehouse; and this floor -
is still used for miscellaneous.._storage.-_. ,
From 1953 to 1959, and perhaps during other years in the
1950's, the second floor was occupied as living quarters by two
employees of the Candle Co. These two persons also engaged in
what is sometimes referred to as "Home industry" in their living
quarters, using their spare time to make costume jewelry, rubber
stamps and wooden foot stools and to do printing of business
cards and notices on a three inch by five inch press. There is no
evidence which would permit a finding of. the volume of the
production of this "Home industry. "
Sometime after the Realty Trust purchased Parcel 2, the second
floor of the Schoolhouse was converted into administrative
offices of the Candle Co. business, and now contains a variety of
office and business equipment. It is no longer used as a
residence by anyone. There is no evidence or finding by the judge
of any prior use of the
Page 661
second floor which can serve as the basis for a claim that the ,
present use is permitted as the continuation of a lawful
nonconforming use.
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We hold with reference to the Schoolhouse building (a) that the
present use of the first floor thereof for miscellaneous storage •
is lawful as a continuation of a nonconforming use; and (b) that
the present use of the second floor thereof for the
administrative office of the business conducted by the Candle Co.
is not entitled to any protection as a nonconforming use and it
violates the zoning by-law of the town.
(b) The Warehouse. The Warehouse is a corrugated metal
building of one story, sixty feet by one hundred feet in size,
erected in 1912. It was thereafter used by members of the Phinney
family for a variety of purposes including the following: the
storage and packaging of coal and wood for sale and delivery to
customers, the storage of ice boxes (not electric refrigerators)
for sale, the storage of coal trucks, oil trucks, pumps and drums
used in a retail fuel oil business, the winter storage of fishing
and marine paraphernalia, the rental of space for the storage of
vehicles, including trucks, and the storage of second-hand
. furniture. Some aspects of the coal and fuel oil business were ~
conducted in portions of the Warehouse from about 1920 until the
Phinney family sold this business in 1959. The furniture storage
occurred in about 1960 and lasted for about two years. The
storage of ice boxes occurred between 1930 and 1950. The storage
of fishing gear occurred during the winters from about 1938 or
1939 until 1959. The evidence does not permit a finding of more
exact dates for the several uses of the Warehouse than those
given above. Neither does it permit more detailed findings of. the '
extent to which the Warehouse was used for the several purposes
described above or the areas or parts of that building used
therefor.
After the Warehouse was purchased by the Realty Trust in 1962,
it was used increasingly by the Candle Co. as a place for
receiving, storing, packaging and shipping
Page 662
items involved in the wholesale aspect of its business. The
Candle Co. in effect moved that part of its total business
operations from its former location in the building on Parcel 1
to the Warehouse building on Parcel 2. To adapt the Warehouse for
this move, a new floor, two toilets, heating and lighting
equipment, shelving, bins and shipping doors were installed, and
later the building was also insulated and sheathed.
The Candle Co. 's gross sales for the year 1960 were.$111, 027,
and they increased each year thereafter. Its use of the Warehouse
after 1962 permitted the expansion of its wholesale operations. '
At the time of trial of this case in 1968 the Candle Co. had
fifty-two employees. Its gross sales for 1967 amounted to
$569, 512, consisting of $57,740 received from sales "made on the
premises, " and $511,772 received, from sales "made off the
premises. " All of the merchandise sold "off the premises" was
processed in the Warehouse. This included the receiving, sorting,
checking, placing in stock or taking from stock, counting,
wrapping, packaging, labeling, boxing and addressing of
merchandise for shipment to about 4, 000 to 5,000 customers
throughout the country. The merchandise was delivered to and
shipped from the Warehouse principally by trucks or trailer
trucks. In 1968 an average of three or four trucks or trailer
trucks drove to and from the premises each day for this purpose,
No manufacturing or retail sales operations have been conducted
at the Warehouse.
The judge found and ruled ".that the current use of . . . (the
Warehouse) is different in quality and character from that use
prevailing before 1957, the difference being that what was a
warehouse and distribution facility used for the purpose of
serving customers within physical reach of one day delivery by
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truck is now such a facility for serving customers nationwide. "
We reach the same result but not for the sole_ reason stated by
the judge.
We hold that the present use of the Warehouse is barred as an
alleged nonconforming use when tested by
Page 663
the standards suggested by our opinion in Bridgewater v.
Chuckran, 351 Mass. 20, 23. The first test is whether the
present use reflects the nature and use prevailing when the
zoning by-law took effect. We hold that it does not. The second
test is whether there is a difference in the quality or
character, as well as the degree, of the present use. We hold
that there is. The third test is whether the current use is
different in kind in its effect on the neighborhood. There is no
question that the combined use of the two parcels and the three
buildings for the conduct of a single business enterprise is
different in kind in its effect on the neighborhood by reason of
the increased traffic. However, it is difficult to determine to
what extent this is attributable to the use of Parcel .2,_ except
for the effect of the truck and trailer-truck deliveries and
shipments.
Our decision that the present use of the Warehouse is not a
protected nonconforming use is based on a consideration of the
combined effect of all of the differences between that use and
the use which existed at the time of the 1956 amendment to the
zoning by-law, and it is not limited to the narrow ground stated
by the judge, viz. , that the area to which merchandise is
distributed from the Warehouse is now much larger than that
serviced in 1956. The Warehouse building which formerly housed a
rather dormant operation involving primarily what might be termed
"dead" storage has now become a veritable beehive of activity
essential to the operation of the Candle Co. 's wholesale business
described above. What the Phinney family did in the Warehouse
prior to the time the property became classified for residential
purposes by the zoning by-law cannot and does not authorize or
protect the use now being made of that building by the Candle Co.
Of the many cases previously decided by this court on this
subject and which are listed above, those involving facts which
more nearly resemble those of the present case are Marblehead
v. Rosenthal, 316 Mass. 124, and Kreger v. Public Bldgs.
Commr. of Newton, 353 Mass. 622, but we do not rely solely on
these two cases.
Page 664
3. Advertising Signs. The permissibility of four signs
advertising the business of the Candle Co. was put in issue in
the trial in the Superior Court, and the judge made findings and
rulings thereon. Two of the signs were located on Parcel 1, and
the other two were directional signs maintained on premises other
than Parcels 1 and 2. None of the briefs includes any discussion
or argument on the issue of the permissibility of the signs. We
therefore treat this issue as waived by all parties. S.J.C. Rule
1:13, 351 Mass. 738.
4. Laches. At the trial in the Superior Court the Realty
Trust and the Candle Co. claimed that the petitioners were barred
by reason of laches in.seeking relief and the judge found against
them thereon. While there is an argument against this claim in
the brief of the original petitioners, the- issue is not argued in
the brief of the parties who raised it. They are therefore deemed
to have waived it. S.J.C. Rule 1:13, 351 Mass. 738. In any event,
for reasons stated in McAleer v. Board of Appeals of
Barnstable, 361 Mass. 317, 322, laches may not be a defence to
this type of petition.
5. Modification -of- Order for` Judgment. The judge of the E
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Superior Court entered an order for judgment in effect denying
the petition for a writ of mandamus as to Parcel 1 and ordering 1
issuance of the writ as to Parcel 2. On the, basis of what we have
said above, the only change required in that order is that relief
should have been denied as to the first floor of the Schoolhouse
building on Parcel 2. Accordingly the order for judgment is to be .-
modified in "that respect with the result that as modified it will
order as follows:
(a) The petition for a writ of mandamus is denied as to Parcel
1, and as to the first floor of the Schoolhouse building on
Parcel 2; and
(b) A writ of mandamus shall issue against the building
inspector ordering him to take whatever action is required under
§ Q (5) of the zoning by-law or under any other provision of law
for the enforcement of the zoning by-law as to the Warehouse
building and the second floor
Page 665
of the Schoolhouse building, both located"on Parcel 2. The order
as to these two buildings shall not contain the provision for a,
stay of the issuance of the writ which was contained in the
original order entered in the Superior Court.
So ordered.
[fnl] As to Parcel 2 the order provided that "issuance of writ to
be stayed, however, for such length of time not exceeding ninety
days from entry hereof as may be necessary for application to the
Zoning Board of Appeals for such relief as such Board may see fit
to grant. " The order was entered on August 28, 1968. On January
15, 1969, the Realty Trust applied to the Board of Appeals for a
permit authorizing them to use Parcel 2 for the purposes which
the judge had held were not authorized by the zoning by-law. The
board denied the petition on July 8, 1969. On motion of the
petitioners the judge, on June 22, 1971, ordered the board's
decision incorporated in the exhibits to be filed with this
court: There is no appeal from the board's decision before us.
[fn2] Ordinarily this claim of justification would require a
determination of the nature and extent of any lawful
nonconforming use in existence when the zoning by-law was first
adopted in 1949, but for reasons not entirely clear from the
record the judge and most of t°he parties seem to have
concentrated on the situation existing at the time of the
comprehensive by-law revision in 1956. The judge stated in his
written decision: "It was stated in open court by counsel for the
petitioners that no evidence relating to the years before 1957
was offered or claimed to show any violation of Zoning By-laws
and, therefore, the Court confines itself to a consideration of
the violations, if any, of the Zoning By-laws as adopted and
applicable to the whole town after, 1956. "
[fn3] This language should be considered subject to the following
cautions about the zoning statutes peculiar to Boston which were
involved in Cochran v. Roemer, supra. :In Inspector of Bldgs.
of Burlington v. Murphy, 320 Mass. 207, at 209, we said: "But
:that case was decided under the zoning statutes applicable to the
city of Boston, which have always been more liberal toward
nonconforming uses than the general statutes applicable
elsewhere." This caution was repeated in Seekonk v. Anthony.,
`339 Mass. 49, 54, and in Kreger v. Public Bldgs. Commr. of
Newton, 353 Mass. 622, 626.
(fn4] There are additional cases limiting the extension -of
nonconforming uses which are frequently cited but which have no "
application to the present case because they involve removal of "
loam or gravel for sale, or other earth removal operations. See `
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Burlington v. •Dunn, 318 Mass. 216; Billerica v. Quinn,
320 Mass. 687; Wayland v. Lee, 325 Mass. 637. Other cases,
frequently cited but not applicable here, hold that the existence
of a lawful nonconforming use does not permit the erection of
additional buildings for the extension or enlargement of that
use. See Wilbur v. Newton, 302 Mass. 38, 43; Inspector of
Bldgs. of Burlington v. Murphy, 320 Mass. 207, 210; Connors
v. Burlington, 325 Mass. 494; Planning Bd. of Reading v.
Board of Appeals of Reading, 333 Mass. 657; Chilson v.
Zoning Bd. of Appeal of Attleboro, 344 Mass. 406; Garfield v.
Board of Appeals of Rockport, 356 Mass. 37. See also Simeone
Stone Corp. v. Board of Appeals of Bourne, 345 Mass. 188,
192-193.
y L
Date Printed: January 14, 1999 1:47:00 PM
lk (OWN CLERK
'97 MAR 10 AMII 11
TOWN OF BARNSTABLE
PETITION FOR SPECIAL PERT?IT UNDER THE ZONING BYLAW
To the Board of Appeals,
Town Hall,Hyannis,MA 02601 Date March 9 19 87
The undersigned petitions the Board of Appeals to vary,in the manner and for the reasons hereinafter set forth,the
application of the provisions of the zoning bylaw to the following described premises.
Applicant: ROBEP.T A. FREEDMAN, Tr. of Schoolhoucu- Dnnd Tml f- 771-4044
'Full Name) (Telephone Number)
Address: 310 Barnstable Road; Hyannis, HA 02601
Owner: OH_Aamdaition Corn-
I Full Name) ITelephone Number)
Address: Two Greenwich Plaza, Greenwich, Conn.
Prior Owner of record Leonard Silver Manufacturing Comraany, Tnr
Tenant(ifany): forinerljr nld Harbor randle Ccm nv
'Full Name) - - (Telephone Number) .
If Applicant other than Owner of property-state nature of interest Buver under Ptirchase & S l e Tcaree
1. Assessors map and lot number I 287 Parcel 19 ment
2. Location of Premises Scudder Avenue Village llyannisport
(Name of Street) (What section of Town) -
3. Dimensions of lot 220' on Scudder Avenue 635' on Lake Avenix, 7 71 ;;L-rs
(Frontage) (Depth) (Square Feet)
4. Zoning district in which premises are located. RF-1
5. How long has owner had title to the above premises? 198E
6. How many buildings are now on the lot? 3
7. Give size of existing buildings 85' x 56'; 76' x 52'; 40' X 24'
Proposed buildings 36' x 200' (8 condcruniums) plus 48' x 48' (8 car garagp)
8. State present use of premises Candle Company and gift shop
9. State proposed use of premises_8 One-bedroom residential condoni ni em'a
10. Give extent of proposed construction or alterations: Remove existing dilapidated buildings- -
struct new building containing 8 one-hedrrrxn residential ConArininitmg.,with flaraj
for 8 cars, plus 8 outside narking spaces, wi ttt 1 arxlscaping
11. Number of living units for which building is to be arranged eight
12. Have you submitted plans for above to the Building Inspector? yes
13. Has he refused a permit? yes
14. What section of zoning bylaw do you ask to be varied?
Sec. P, Par. A6 - change of a non-ronforninq nap to anv Spec-i fied u z,, pot rrtre
z
detrimental to a neighborhood & Sec 6 Par. B
15. State reasons for variance or special permit .The history of the use of this oroperty by Old
Harbor Candle Company has been msnufacturincl and sale of candles, w'lich are industrial
and ootlrlercial uses: The oresent buildinas are m-dfxin and t,-,attrnf-t-iinr - ^he proposed
new use as residential eondofttiniu-is will be a much less intense use of the property
and far more attractive. The size (footprint) of the new bu'ldinf• trill not he an-
larger than the old buildings. The new buildings will be set back further from the
street and the sidelines than the present buildings There will tw a Gnhst•antial d.e-
crease in traffic (no trore tour busses and gift sho-3) and the amunt of payerent ri 11
be greatly reduced. The values of surroundincl Tro2erties should suhstantialljL n rease.
The new use (residential) .is certainly less objectionable and less detrimental than the
old use. }
(over)
AREA CODE 617
i TELS. 775-1575
Q 775-1576
WILLIAM G. HOWES III
ATTORNEY AND COUNSELLOR AT LAW
49 ELM STREET
HYANNIS. MASS. 02601
August 17 , 1987
Ronald S. Jansson
Chairman
Board of Appeals
Town of Barnstable _ AUG
Town Hall
Hyannis, MA 02601
RE: APPEAL NO.' 1987-48
SCHOOL HOUSE POND TRUST
Dear Mr. Jansson:
In accordance with the Decision of your
Board in the -above matter, I enclose a revised set
of plans which show the following:
1) New site plan shows a total' of seven
(7) units which are centered on the
lot so that there is now a twenty-four
foot (241 ) buffer strip on each side
of the building;
2) The second story of the garage has been
eliminated;
3) . The second floor plan shows a cross
section of a truss roof to be con-
structed so as not to allow any liv-
ing space on the third floor.
I trust that this complies with your request;
and I wish . to thank your Board for its nsideration
in this matter.
Very ruly yo
William G. .Howes III
WGH:jdm
Enclosure
MEMORANDUM IN SUPPORT OF
SPECIAL PERMIT l�
TO CONVERT OLD HARBOR CANDLE COMPANY b
TO EIGHT (_81 RESPDENTI, AL CONDOMINIUMS
SCUDDER AVENUE
HYANNISTORT , MA.
x •
BARNSTABLE BOARD OF APPEALS
CASE .NO . 1987.-48
June II , 1987
Y
FOR PETITIONER :
WI,LLIAM G1. HOWES,, III
4.9 E.1m Street
Hyannis , Ma . 02601
. r .
775- 1575
The Petitioner is Dr . Robert A. Freedman , Trustee of Schoolhouse
Pond Trust . He has a signed Purchase — Sale Agreement to buy the
property on Scudder Avenue , Hyannisport , Ma . , known as The Old Harbor
Candle property . His purchase is contingent upon obtaining approval
for eight (8) one - bedroom residential condominiums .
Locus consists of 2 . 71 acres of land , with buildings thereon ,
being shown on Barnstable Assessors Map 287 , Parcel 19 . There are
221 feet of frontage on Scudder Avenue , and 635 feet of frontage on
Lake Avenue .
There are three bui'ldings' on the property , all . of which predate
zoning in the Town of Barnstable . These are shown on the site plan
filed with the petition . The Northerly building ,- known as the Gift
Shop and Candle Factory , is 76 feet x 52 feet . The middle building ,
known as The Schoolhouse , is 40 feet x 24 feet , and is used for storage .
The southerly building , known as The Warehouse , i-s also used for storage
and measures 85 feet x 56 feet . Photographs submi'tted show all building
to be in a serious state of disrepair , and the prope-rty in general has
been used as a dumping ground for all sorts of trash and debris .
Two court cases have both' found that these buildings are valid
non-conforming uses entitled to protection of our zoning by- law; In
1973 , the Supreme Judicial Court of Massachusetts decided the case of
Charles Powers et al vs . the Building Inspector of Barnstable , in 363
Mass . 648. Thirty-six neighbors brought suit against The .Old Harbor
Candle Company , seeking to prohibit what they felt was unauthorized
or excessive use of the property. Although the court found a "veritable
beehive of activity" on the property , it" said that the "substantial
increase" in the volume of business conducted on the premises was a
lawful continuance of a valid non-conforming use. and was therefore
protected .
In 1980 , the case ` of .Building Inspector of the Town of Barnstable
v . Old Harbor Industries , Barnstable Superior Court No . 39412 , the
Court again held that the use of the property was alawful nonconforming
use entitled . to protection of the zoning by- laws .
Since this property Js . a valid non-conforming use , it is the
proper subject of a special permit for a change of a non-conforming
use to any use not more detrimental to the neighborhood , under our
zoning by- law "Secti.on P . 6 and Section G , Par . B .
The proposed new use would be eight (8) one bedroom residential
condominiums , with garage . The lot contains a total of 2 . 71 acres ,
with 1 . 66 acres being upland . Section M of our zoning by- law would
a11`ow 14 � units on this parcel . The proposed new buildings would only
cover 13% of the upland . Although this proposal complies with these
provisions of Section , M , the Cotuit Inn case holds ,,that in a change
of non-conform i ng use case , such as t i."s— t_ e-pet i t i oner.. need not
comply with Section. M requirements .
y
The footprint of the new building is actually slightly smaller
than the size of the existing buildings . The new building is set
back further from the street and sidelines than the present buildings .
The zoning by- law would require fourteen parking spaces . We have
sixteen - eight inside garage and eight outside .
The proposed new condominiums would eliminate most of the existing
pavement , pollution , noise , congestion and traffic . The traffic report
makes several findings . First , eight residential condominium units
on the site would have a negligible impact on existing traffic opera-
tion on Scudder Avenue . In fact , the proposed new use will result in
a reduction of trips to the site from its present use . Second ; the
new proposal has two controlled access points , whereas the present use
has an open , undefined access .
For all of these reasons , it, is clear that the proposed new use
of residential condominiums is less objectionable and less detrimental
than the existing commercial non-conforming use is 'to this residential
neighborhood . Conceivably , ' many other uses could locate here - office
buildings , a restaurant , or a commercial complex of stores - as long
as the new use is not more detrimental than the present use .
After reading the history of litigation on this property , it is
hard to think of anything that would be more detrimental to this
neighborhood than the Candle Company ' s u'se of this property for the
past thirty years . The proposed eight condominiums are the lesser
of all possible uses for this property.
Some of the neighbors hope that this property will . become a
single family residence just because that ' s the zoning district it ' s
in . That is merely wishful thinking , and will .never happen . tf this
petition is not granted , 'the present owners intend to use this property
for the candle business to the fullest extent possi"ble.
The sole issue for the Board of Appeals to decide is whether
eight (_81 one-bedroom, residential , luxury-style condominiums are
more detrimental to a residential neighborhood than the Old Harbor
Candle Company has been. The present picture shows dilapidated
buildings , a dumping ground for trash , commercial uses , a gift shop
and a warehouse , heavy traffic , tour busses , trucks and noise . The
new proposal shows a cleaned-up property with an attractive new
building , a residential use in a residential neighborhood , and
landscaping in place of pavement .
Common sense says that the proposed new use is not more
detrimental to a residential neighborhood than .the present commer.c_ia.)
use is . Thies is a one- time opportunity for the people of Hyannissport
and the Town itself to rid themselves of an eyesore , a business , a
property with a long. history of 'legal : battles wK.ich h:.ave protected
. t.s. non.^conformi;ng use , and at no cost . to tKem , replace. it wi. th. an
attactive. bui.ld.ing that will increase their property values and clean
up the n.ei.ghborfiood .
BLYTH INDUSTRIES,INC. Two GREENWICH PLAZA,GREENWICH,CT 06830-6353
TELEPHONE:(203)661-1988•TELECOPIER:(203)661-1969•TELEX:211925 ROl UR
ROBERT B.GOERGEN
CHAIRMAN OF THE BOARD -
C� June 5, '1987
To Whom It May Concern:
This is to advise you that Old Harbor Acquisition Corporation of
Greenwich, Connecticut is the present owner of the property in
Hyannisport commonly known as the Old Harbor Candle property.
Although we have just recently purchased this property, we have
agreed to sell it to Dr. Robert Freedman, subject to its approval
to construct residential, one-bedroom condominiums.
If that approval is not obtained, we shall keep the property and
use it-for our candle business. Our sales are increasing; we need
more warehouse space; and we can use more plant capacity for the.
making of candles. The Hyannisport facility fits all of our present
needs, and we would expect to use Old Harbor Candle to the
maximum extent permitted.
Sincerely,
_ s
June 11 , 1987
TO: Barnstable Zoning Board of Appeals
FM: Larry L. Dunkin, Principal Planner
RE : APPEAL #1987-48 (ROBERT A. FREEDMAN
?�
Location: The premises is a 2.71 acre parcel of land, located at
the northeast intersection of Scudder Avenue and Lake Avenue in
Hyannisport.
Environmental : The subject parcel is not within Zone of
Contribution #3. The area is not sewered, although it is scheduled
to be sewered according to the sewer master plan.
Zoning: The parcel is located in RF- 1 single-family zoning
district, which requires one acre of contiguous upland per lot.
Applicant's Proposal : The applicant proposes to remove existing
non-conforming buildings used for candle manufacturing and sale of
candles, ' to construct a new building containing 8 residential
condominiums, with a garage for 8 cars, plus outside parking
spaces for 8 vehicles. The applicant seeks a special permis a
special permit under Section P, paragraph A,6; and Section G,
paragraph B of the Zoning Bylaw..
Recommendation: The plan shows that each unit of the eight
condominiums has 912 square feet of first floor area, comprised of
kitchen, living area with fireplace, and 112 bath; the second
floor is also .912 square feet, comprised of two full baths, and
two bedrooms. The plan does not show total upland ar
wetland area on the lot. The total sewage generated will be 1 ,760
gallons per day ( 110 gpd X 16 SR = 1 ,760) . The plan does not show
any location of seotfc tank/1Paching field area. The anticipated
sewage flow will very likely have detrimental impact on the nearby
wetland and pond. The Board of Health' s recommendation should be
sought regarding the suitabi i y o the site for septic and
leaching purposes to hold 1 ,760 gallons per day, and the impact of
sewage on the wetland and pond. Further, the project will fall
within the Conservation Commission's .jurisdiction
it is the recommendation of this writer that the hearing be
continued to a date specific, providing adequate time. for a
determination by the Conservation Commission. There is some
likelihood that any order of conditions from the Conservation
Commission may require adjustments to the proposed plan. Such
potential adjustments could be provided for and included in the
Board's determination on this appeal . .
yes �
OF 1HE
Department of Planning and Development
. e",&UM STAFF REPORT
039. `00
R - ,
Zoning Board of Appeals
'r7 '101, 1 ; 4M 9 13
OH ACQUISITION CORPORATION
__.._._r_............_ _._._ ....__......_........._ Deed duly recorded in the _..__......
_.._..___._._...._._...
Property Owner
County° Registry of Deeds in hook
Robert A. Freedman Tr. , Schoolhouse Pond
_ ._...__: . age
Petitioner
District of the. Land Court Certificate No.
Boob Tate
Appeal No. 1987-48 ... ly
\ FACTS and DECISION
Robert A. Freedman, Tr. ,. School
Petitioner �_.._.__....____.. �.___.......M__--_�_.._ _ .._..._.__ _.filed petition on _...._.._....._...__._. _....:___ 19
House Pond Tr.
requesting a variance-permit for premises at __ Scudder. Ave. . ..._.....nue ........, in the pillage
_. .... ................ ...._._........__..__.
(Street)
of _ Hvannimont __e adjoining premises of _ (see attached list)
Locus under consideration: Barnstable Assessor's Afap no. ----- �_....._ lot nip. . _?.9._�___.
Petition for Special Permit:. ❑
Application for Variance: ❑ made under Sec. __..._........._........................_.._.—_. of the Town of Barnstable
Zoning by-laws and Sec. . Chanter 40A.. Mass. Gen. Laws
for the purpose ofchange�of�a non-conformin8 use from candle fact.oryMto_ eight_(S)
one-bedroom, re'sidential condominium units.
Locus is presently zoned in _ RF-1
Notice of this hc aring was giren by mail. postage prepaid, to all persons deemed affected- and
hy publishing in Barnstable Patriot newspaper published in Town of Barnstable a copy of
winch is attached to the record of these proceedings filed with Town Clerk.
A public hearin,- b} the Board of Appeals of the Town of Barnstable was hrld at the Town
Offiee ruilditio, II�::nnis: Mass., at ...:.. _Q.___._..?��CRf. 1 .:11. _..._..1.untC....1.1......................_......._. _: t!t 8?
upon said Petition under zoniu- by-lane.
Present at. the hearin, were the followin_• ntemher`:
Richard L Boy Gail Nightingale Dexter Bliss
_...__........ _..............................._...............
__.___.__ ____.Chairman __..___ __ _ _...._.___....._....._._... Y .
Elizabeth Horton Helen rtanen
1 W•i
j
At the conclusion of th earing,- the Board took said petition is :r advisement. A view of the
locus was made by the Board.
Appeal No.____1987_48.__-_......____.......__.
Page ......_.......2..... of
JulY...... ..z._._......__.....................................__....... 14 _.._87__.., The Board of Appeals found
Attorney William Howes, III, represented the applicant, Robert A. Freedman,
Trustee of School House Pond Trust, who has a purchase and sale agreement for the
property located on Scudder Avenue, Hyannisport, Map 287, Lot 19, for the" premises
known as the "Old Harbor Candle Company" on a parcel consisting of 2. 71 acres.
The petitioner proposes to raze the three existing non-conforming buildings,
consisting of the candle factory, schoolhouse building and. warehouse building,
and construct, per the Plan, eight (8) one-bedroom residential condominium units
with eight (8) garages on 1.66 acres of upland with 13% upland coverage.
The proposed buildings would be typical Hyannisport architecture, townhouse
units with first and second floor. Each unit is approximately 1800 square feet
and contains a large kitchen/dining area, living room with fireplace, entry,
half bath and a built in wet bar. The second floor contains a large master bedroom
suite with master bath and separate whirlpool room, each unit has a second floor
balcony and a study area. Parking is available on the site for sixteen vehicles (16;
eight vehicles would be housed inside a two-story carr'iage. house garage. All of
the structures would be of wood frame construction with white cedar shingle exterior
on all four sides. Also, as indicated on the Site Plan is a small gazebo and a
boardwalk going out to Schoolhouse Pond. There would be extensive landscaping and
some fencing along the front.
The petitioner seeks a Special Permit under Section G (B) of the Town of.
Barnstable Zoning By-law.
Dexter Bliss made a finding that the intent of the Special Permit is to allow
a person who has a non-conforming use or a use that is made non-conforming by new
zoning laws to utilize the property. The intent of the by-law is to allow uses
that are the same or less detrimental to the neighborhood as related to the new
zoning. Find that the petitioner complies with Section G (B) , find that a residen-
tial condominium is not substantially more detrimental to the neighborhood; it: is
less detrimental than industrial use in a residential neighborhood, especially
considering traffic that would result from both types of uses.
Dexter Bliss made a motion to grant the Special Permit based on. his findings.
I. _._.._..._.._....--_........................ . . __................
_...._ ... __.......... Clerk of the •I•mru of Barnstable, 1,,rnstable
t.',,unt , Massachusetts, herebN certif that twenty, (201 days hart elapsed .siace tl::• hoard o-f Appeals
rendered its decision in the.above entitled petition and that 'itsappeal of said drei:tinn hay been filed
ill t.ht. office of the Torn Clerk.
Si"'rtid'and Sealed tliis ...................... daY of ....................................
under tilt. pains and
Penalties of perjury.'
Distribution:—
PropertyOwner .........................................._ ...._................... ........... . ...
Town ClerkI:oard of _ pp ,eals
.lpplicant
of Itarinstalllr: ,
Persons interested ,
Building Inspector Pni
Public Information,l:nard of AppealsV(GC" C ..
At the conclusion of the •aring, the Board took said petition un. advisement.. A view.of the
locus was made by the Board.
1957_-48__...._._._ Page ...................... of
Appeal No.___.__.. ____........
87 he Board of Appeals found
1
Elizabeth Horton seconded Dexter's motion to grant the Special Permit.
Gail Nightingale made a motion to eliminate the second story of the
garage — Dexter Bliss seconded the motion. The Board voted in the affirmative
by unanimous vote to eliminate the second story of the garage.
Gail Nightingale made a motion to amend with six (6) units and to reduce
the garage to house six (6) vehicles. The amendment did not pass.
Dexter Bliss made an amendment to his original motion to make the potential
third floor of the condominium unusable. The original motion for eight (8) units
and eight (8) garages, with no second story in garages and unusable third floor
in condo units did not pass. Helen Wirtanen and Gail Nightingale. voted in favor,
while Dexter Bliss, Richard Boy and Elizabeth Horton voted to deny.
The Board voted unanimously in favor to reopen for the purpose of dis
cussion of reduction °re pee o a 71la eD of a B1'ssomadee,at otion to .eliminate
one unit,/t,tshetKn pr�OOee €e �e�cln U rerd on g�eggo�ywi��i anga�ditional green
of the
buffer strip of 24' on each side of the building, and the elimination
second floor of the garage. It was found ,that this use would not be substantially
detrimental to the neighborhood
The Board voted unanimously to grant the Special Permit per the revised Plans
indicating the. following restrictions:
1. The project to be: reduced by one unit for a total of seven units (7) ;
2. Eliminate the- second story of the garage;
3. As a result of the elimination of one unit, the project to be centered
so that there is to be a 24' green buffer strip on each side of the
building;
4. That the truss roof to be constructed so,as not• to allow any living
space on the third floor;
Subject to the approval of Conservation Commission and Board of Health, regardin
wetlands and septic system
_.. ... Clerk '(if the oWl, of Barnstable, Barnstable
I ._.... ..
__ _._.._..__ ............. .._...............................
__.
County, Massachusetts, hereby certify that twenty (20) days have elapsed since the Board of Appeals
rendered its decision in the. above entitled petition and that nu appeal of said dreisinn has been filed
in the office of the Town Clerk.
Signed and Sealed this . ......_...... (la%• of .......................................................................... 19 under the pains and
penalties of perjury:
Distribution —
...._...
Property Owner
Town Clerk ltoard of Appeals
,
Town of Barnstable
Applicant
Persons interested � • .
Building Inspector
13y ...
Public Information "' '
Appeals V I GG— CIO
l irman
Board of App ,
I 6v
PARTIES IN INTEREST ROBERT A. FREEMAN, TR. , OF SCHOOL HOUSE .POND TRUST Meeting
i 87
Nicolas Franco Tr./John Moniz P.O. Box 534 Centerville, Ma
Rudy Termini/Dennis Carey 67 Forest ST, Sudbury, Ma
Samuel & Magaly Borodinsky 1376 Sunflower St, Yorktown Hgts, NY
Paderborn Development INc 3800 RTe 28, Marstons MIll, MA
Robert & Tamara Anderson 30 Mass Ave, Hyannisport, Ma
Ruth Berry Box 187 Anderson Heights, Hyannisport, Ma
Vincent Wolf-ington 4545- 42nd ST, NW Suite 300, Washington, DC
Francis & Maye Brogan Massachusetts Ave, Hyannisport, MA
Allen Anderson 117 Amory St, Cambridge, MA
Arvid anderson Box 659, Hyannis, MA
Dorothy Anderson_ Park PL, Box 583, Hyannisprot, Ma
Barbara & Brandt Anderson 9 O'Rourke Path, Newton, MA
Robert & Tamara Anderson Massachusetts. Ave, Hyannisport, MA
Richard & Jessie Sentner 329 Sycamore Rd, Sewickley, PA
Charles Edwards Box 368, HYannisport, MA
John & Ruth Berry. Anderson Heights, Hyannisport, MA
Box 338, Hyannisport, MA
Elsa Powers
Charles & Elsa Powers Box 338, HYannisport, MA
Vincent Wolington 4545 42nd ST, Washington, DC
richard Karis P 0 Box 575, Hyannisport, MA
Catherine & Hammond Ryan Box 482, Hyannisprot, MA
Larry NIckulas/%Mark Doral . 394- Lowell ST, Lexington, MA
John & Ann Garrahan 53 Fairway Cir, Natick, MA
Rose Scotti T.R/Scotco Realty Tr P O Box 225, Wincester, MA
Peter & Frederick Taylor PO Box 206, Hyannisport, MA
Frank &Joan Rolfe 153 Bryant sT, W Bridgewater, MA
Madeline Bearse . 'Box 112, Hyannisport, MA
Hyannis Fire District High School Rd, Hyannis,. MA
Yarmouth PLanning Board
•Sanwich PLanning Board
Mashpee PLanning Board
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point stood the house of M. Hinckley. At the junction Lillis has proved herself an able teacher and a hard
of Pitchers Way and Scudder Avenue stands the fine worker, and is generally liked by scholars and parents.
old homestead of Capt. Lemuel B. Simmons (a spec- We sincerely hope that she may teach here another
ial chapter about this house and owner will appear year, but we are afraid that this school is rather small,
later on). Going south on Scudder Avenue stands an and understand that she is justly ambitious to obtain
old house listed as belonging to W. Linnell and P. a larger one. Three pupils are prepared to take exam-
Lewis. At a later date this house was occupied by the inations for the High School, namely: Cora W. Lum-
well-known clipper ship commander, Capt. W. W. bert, Minnie R. Crosby and E. Henry Phinney.
Frost. Two items in the Cape Cod Bee that pertain
to Capt. Frost, I shall quote as follows: 25th January The order of exercises were . follows:
1880, "Capt. and Mrs. W. W. Frost left home last Recitation: The Birds by Howard Childs.
Saturday to join the ship Hoogly in New York; they Recitation: Landing Of The Pilgrims,by Gertrude
will probably sail from there this week for Shanghai, - Torrey.
China. They have many friends to greatly regret their Recitation: I'll Put II Off,by James Gifford.
departure and will wish them a speedy return." The
second item appears under date of 10th June, 1881 Essay: Ships,by David H.Gifford.
and reads as follows: "Private letters from the ship Recitation: The Crust of Bread,by Annie Harrington,
Hoogly, Capt. W. W. Frost, report the ship at Anger, Essay: New England,by Gertrude Torrey.
Java 15th April 1881 en route for Shanghai and Manila,
Recitation: Waves On The Shore,by Mamie Washing-
and from there to New York." In particular, it should ton.
be noted that the wives of clipper ship commanders Recitation: A Child's First Grief, by David H Gifford.
quite often accompanied their husbands on voyages.
The Frost house is still standing and was occupied- Recitation: Honey Bee,by Caddie Crosby.
quite a number of years by Miss Alice Falvey, a mem- Recitation: Babes In The Wood,by Ada Harrington.
ber of one of Hyannis Port's first summer families. Essay: Benjamin Franklin,by Minnie R.Crosby.
Next door to the Frost's was the house of L.'B. Recitation: Paul Revere's Ride,by Cora W.Lumbers.
Chase which, also is still standing. Between Smith Dialogue: Edith Linnell,Alonzo Paine, Maurice Phin-
Street and Craigville Road six houses stood on the ney,ICora W.Lumbert and Willie
same side of the street and were owned by C. H. Taylor, Washington.
J. Linnell, J. Hinckley, E. Chase, Mrs. E. Linnell and Recitation: Bernado Del Carpio,by Minnie Crosby.
Uriah Linnell. On the opposite side of the street was Recitation: Who Stole The Bird's Nest,by Vida Linnell.
Susan Bassett's house and that of M. A. Nelson, both
overlooking Schoolhouse Pond, now known as "Bot- Dialogue: Brutus and Cassius,by Minnie R.Crosby
tomless," as it has a muddy bottom. Near the junction and Cora W.Lumbert.
of Craigville Road, lived E. Hinckley, only a short dis-
tance from the schoolhouse. .
y
The old schoolhouse is still standing next to the :
Candle Shop, it now being a storehouse. Its location
was quite a pretty one, being-situated on the edge of
an oak forest with no other buildings being close by,
and was in use until sometime around the start of the
century, when it was permanently closed and the pupils
transported to Hyannis by barge to the schools in that
village. The Cape Cod Bee of 3rd July 1888 has a
very interesting item about the old school which I
quote as follows: "The closing exercises at the Hyannis W. C. Eldredge's Garage located on site of present Candle
'Port School took place on Friday afternoon, last. A factory took care of all early Hyannis.Port cars and next door
was E. Henry Phinney's place which dealt in coal, wood and
carefully arranged programme was presented and the oil. That is now storage place for the candle works as is the
scholars did remarkably well. They showed that they old district school house.
had been carefully trained, and also that they were in- Eldredge's was also advertised as "W. C. Eldredge's Fireproof
Garage" and five and seven-passenger cars for rent "by the
terested in the work and tried to do their best. Miss day, hour,~week or month."
thirteen.
ST. ANDREW'S BY-THE-SEA
It was not until the summer of 1897 that Episco- ' sidered; one near the Swiss Cottages, and the other at
pal Services were first held in Hyannis Port. This the corner of Longwood and Washington Avenues.
first service took place in the Union Chapel which was However, no lot had to be purchased, as a short time
loaned for the occasion. During that summer several after this meeting took place, telegrams were received
afternoon services were held in Red Men's Hall in by Mrs. James Otis and Mr. Charles Street from Mrs.
Hyannis. Mrs. James Otis was the prime mover in Stevens, another good friend of St. Andrew's, saying:
getting these services started. Before proceeding fur- "Sunset Hill given for church. Will also contribute to
ther with this write-up, I would like to pay a tribute building." Mrs. Stevens' sister, Mrs. Chambers, was a
to this fine and gracious lady, who was known far and close friend of a Mrs. Whittemore of Orange, N. J.
wide for her good deeds in the community: Later, It seems that Dr. and Mrs. Whittemore had chosen
she was affectionately known as "The Mother of St. Sunset Hill as the site for their summer home. How-
Andrew's." ever, Dr. Whittemore died before their plans could be
In the following summer, 1898, arrangements were realized, and left a request that his ashes be scattered
made for the holding of services in the old Universal- over Sunset Hill. To Mrs. Whittemore, it was con-
ist Church in Hyannis, which was later destroyed in secrated ground, and she made this wonderful and
the great fire of 1904. This church stood on the site generous gift to St. Andrew's Mission as a building
of the Federated Church directly opposite the Cape. site for the church.
Cod Bank and Trust Co. These services were regu- In 1904, there were many meetings of the finance
larly held each Sunday afternoon from 17th July to . and building committees, .and in 1905 an outdoor
17th September, Capt. Hinckley's barge conveying service was held on Sunset Hill. On August the first
members of the Port congregation to Hyannis. 1906 the cornerstone was laid by Bishop Whitehead of
Interest in these services in the community was Pittsburgh. On 12th August 1911, five years after
growing to such an extent,that it seemed'well to plan the laying of the cornerstone, the church was conse-
for a regular place of worship. In 1899, the old' crated by Bishop William Lawrence of Massachusetts.
District #5 School House, which had long ceased to In closing this chapter, I shall give the names of
be used, was rented for a small sum and simply fur- those who were most active and interested in St.
niched as a chapel. At that particular time, the loca- Andrew's which are as follows:
tion was a very pretty one with lovely oak woods in Mr. and Mrs.James Otis
the background and a ribbon 'road leading to School Mr. and Mrs. Wm.J. Mullins
House Pond, or perhaps, better known as Bottomless Mr. and Mrs. George Payson
Pond, and Uncle John Smith's ice house. The old
school house is still standing next to the Candle Shop Mr. and Mrs. Charles Street
on Scudder Avenue, but the neighborhood is now so Mr. and Mrs.F. G. Darlington
very commercialized and is anything but attractive. Mr.asrd Mrs. D.C. Heath
Regular services were held there during that summer Mr. and Mrs.A. B.Halliday
and the following summers, from the last Sunday in Mrs.Cyrus Brewer
June to the second Sunday in September. Mrs.Stevens
A meeting was held in 1903, and at that par- Mrs. Chambers
r
ticular meeting, it was voted to purchase a lot and Mrs. A.Fowler
build a small Episcopal Church. Two lots were con Mrs. Wm.Bishop
forty-three
{
t - x
HYANNIS PORT SCHOOL HOUSE
At the foot of the hill by the edge of the wood
For many long years the old school-house has stood.
The shingles are now weather worn and gray.
And the model is that of a bygone day
The doors are locked and closed are the blinds,
Deserted and left by the receptive minds �I
Of the children who used to gather there
To join in morning praise and prayer.
To learn the lessons from school books taught,
And who often in mischief by teacher were caught.
Oh! Many of them are now old and gray,
& "
And some are living in lands far away.
Still others have crossed to the better land,
All leaving the school house on Hyannis sand.
And now the children living here 1
Go to new and modern school houses near. a
They ride in barges by horses drawn
To the handsome new buildings in Hyannis town.
But the dear old school house we love so well, `+ 1
a;
Because there,we learned to read and spell. i
F.'
To many it has been a faithful friend,
And its strong,good influence never will end.
The dear old school house standing there,
Has now become a place of Prayer.
The people gather there on Sabbath Morn '
To join in prayer and song.
The Holy Cross placed o'er the door
Has Baptized it in glory forever more. 1
Its days of usefulness are nearly passed,.
But its glory in our minds will last.
Hyannis Port District No. S public school stands today
And may all of those who have studied there,' on the site of the Old Harbor Candle Company. The Build-
ing was used for nearly 50 %ears before being closed. In
1899 the first Episcopal Service was held in the school by
Be helped and blessed from day to day, the new congregation which used the school while St. An-
drews By-The-Sea was being built. Photographs from col-
By the lessons learned in the school by the way. lection of Miss Josephine McHenry are printed courtesy of
Mr. Richard C. Chappell. Exterior and interior views of
By CLARA S. MCCANN school during its service as church are shown in these old
Niece of Capt. Dan Hathaway photographs.
(This building is now part of the old Harbor Candle Co. It was used
by the Episcopal Church during construction of St. Andrews By-the-Sea
on Sunset Hill.)
sixty-five
r
t
Zoning Board of Appeals
Excerpt from the Minutes of December 16, 1998
Appeal Number 1998-138 Chatham Real Properties,Inc.
Board Members hearing this appeal were Gail Nightingale,Ron Jansson,Thomas DeRiemer,Elizabeth Nilsson,and
Chairman Emmett Glynn. Alternate Board Member David Rice will hear the testimony and be available to replace
any Board Member,if necessary. Aaron Bornstein represented himself before the Board. Also present were Stuart
Bornstein;Arne Ojala and Dan Ojala of DownCape Engineering;and Peter Dimeo and David Hopkinson of Peter F.
Dimeo Associates,Inc.-Architects and Engineers. Mr.Bornstein submitted to the Board a set of plans entitled
"School House Pond Condominium" dated 12/01/98 including 13 pages. He also submitted a letter from the Board
of Health dated October 20, 1998 and a letter from Mrs.Robert Morey dated December 02, 1998.
Mr.Bornstein reviewed the proposal stating he is seeking permission to build seven condominiums. The units have
two bedrooms and are two stories.The garages are one story. The site has Board of Health approval for fourteen
(14)bedrooms. The project is more than 50 feet from the wetlands. The site has three buildings located on it. The
applicant proposes to raze'two of the buildings and relocate one building to another location in Hyannisport. There
is some hazardous material on site that will be removed by a licensed contractor. The proposal will use less ground
coverage than what is there presently. The existing imperious material(including buildings and ground cover)is
over 40,000 feet and the proposal will be for 18,000 feet-less than half of what currently exists. The current
footprint is 9,711 square feet of building and they are proposing a footprint of 9,600 square feet-basically the
same.
Mr.Bornstein reported this project is geared at the"empty nesters"so there will be no impact on schools and there
will be a minimum amount of traffic. The buildings are designed to fit in with the"Hyannisport look". The
buildings that are on site now are a blight to the area. They have been used since 1943 for many commercial uses.
Mr.Bornstein said that the site is now used for warehouse storage;the storage of automobiles and construction
materials. A letter from Mrs.Robert Morey was read into the record in which she writes,"Since our ownership.of
the property,from September 11, 1991 to November 25, 1997,we have used the property for warehouse storage of
household items,vehicles,and other items. In addition,the Hyannisport Club leased the property for a period of
time to store maintenance equipment for maintaining their facilities." Mr.Bornstein stated this storage was in all
three buildings.Jt was unclear whether this storage was related to a commercial use or personal use. .The Board
asked for proof that this was a legal,commercial use. The Board needs the applicant to establish the on-going legal,
nonconforming use from before the 1980s to date.
The Board asked if the Master's Report of June 24, 1980 from the Superior Court for Building Inspector of the
Town of Barnstable vs. Old Harbor Industries,has been adopted. The Board asked for verification that the Master's
Report has been confirmed and adopted by the Court.
Dan Ojala addressed the Board and reported that the prior owners of the property kept the use current and the
applicant could bring in proof i,f the Board wanted such. -
Mr.Bornstein noted the Old School House will be moved to another site in Hyannisport and will be completely
restored. They have permission from the Town to tear it down,but they found a site where it would fit in and chose
to move it instead of demolishing it. He reported they met with the"Friend of Hyannisport"and several abutters to
review this project. Most people liked the proposal with the exception of the density issue. He explained that the
cost is prohibitive to build less than what they are planning. He stressed that there is a great financial cost to remove
the buildings and rebuilt and landscape the area. He listed the costs involved. There is a need for these types of
units for older people in the Hyannisport area.
'Stuart Bornstein addressed the Board. He indicated the new proposal will be on the same footprint as there now.
The Board was concerned because the plans that were submitted tonight,dated 12/01/98,differ from the plans that
were submitted with the application and dated September 17, 1998. The latest site plan is dated 12/10/98 and was
received by the Planing D6partmenton December 14, 1998.
The plans that went before Site Plan Review were the plans dated September 17, 1998. Mr.Bornstein indicated the
buildings grew"wider by seven feet". He reported that information to the Building Commissioner and Mr.
Bornstein said the Building Commissioner told him he did not need to return to Site Plan Review. The proposal still
meets the sideline setback requirements for the district. The plans differ and the exact calculations of the buildings
are unclear. Dan Ojala reported there was about 1,000 square feet difference in the new plan and the old plan but
1
1
77
r
stressed the project is still within the setbacks. There was a confusion as to the square footage of the old plans and
the new plans,and a question of whether the project should be referred back to Site Plan Review. Dan Ojala
reported that some of the balconies in the back(on the old plans)are now sitting rooms which would be considered
living space and thus increase the livable square footage calculations. But the size of the building is still within the
Zoning Ordinance requirements. The proposal still needs to go before the Conservation Commission.
The Board reminded the applicant that he is seeking a change from one nonconforming use to another and not an
expansion and therefore he can not exceed the square footage from what is currently utilized on site.
Mr.(Stuart)Bornstein reviewed the plans. The existing building footprint is 9,711 square feet(not including the
patio). The proposed building footprint is 9,645 square feet(not including the decks). Therefore,the footprint is
less. The impervious area is also decreasing. The Board stressed that the decks should be included because they are
part of the structure. The decks are 1,012 square feet(total). If the decks/balconies are included,the total square
footage is 10,767 square feet which is about 900 feet over what is currently on site and the applicant would need to
seek additional relief.
The Board asked about stories and Mr.(Stuart)Bornstein reported the buildings are all two stories. The basements
are walk-out,but no plumbing will be included. They are not to be considered living quarters. They are to be used
for utilities and equipment only.
Dan Ojala discussed the septic system. The Board of Health reviewed the project and has no objection to the
proposed fourteen bedrooms. They felt that nitrogen loading was not a concern and they had no problem with the
septic system proposed by the applicant. Mr.Ojala stated the project will improve the wetlands on the site.
Currently there is a paved swale on the lot that now drains into the pond;with this proposal,that will change. There
will now be on-site drainage and a vast improvement to the wetlands.
The buildings will be sprinkled for extra fire protection. The rear of the site can be accessed because the site is
setback 30 feet from Lake Avenue. Mr.Ojala reported that there are right-of-way easement agreements in force that
allow the applicant to use the right of way on the adjacent property. He believes they have been used enough so that
they.have not expired.
The Board asked about the elevation at bottom of the bank. Mr.Ojala reported it is now at elevation 9 and it will
stay at that. There will be some regrading in the area of the existing pavement within the 50 foot conservation
buffer. That will be discussed at the Conservation Commission hearing. The elevations on site were discussed.
Unit 1 is partially in a Zone B on the FEMA maps however;Mr.Ojala was not concerned with flooding due to the
good gravel sand in that area.
Public Comments: Attorney Ford spoke. He is representing the"Friends of Hyannisport"which is a group of
twenty-seven local residents,some of whom are direct abutters. They met with the applicants and were concerned
with the size and bulk of the project. Mr.Ford reminded the Board that under the Zoning Ordinance,Section 4-
4.5(1)Change of a Nonconforming Use to Another Nonconforming Use,Subsection(B)(5)clearly states,"the
proposed nonconforming use does not expand the gross floor area of the nonconforming use[on site]." The
applicants did not apply for an expansion of a nonconforming use but rather a change and,based on the relief they
applied for,the applicants can not increase the gross floor area. It is this increase in gross floor area that the
neighbors are against. The project is too big for the site. Attorney Ford also questioned if there is actually a
nonconforming use on the site. The abutters Mr.Ford represents disagree with the Applicant that there has been an
ongoing commercial warehouse storage use on the site. The valid nonconforming use must be demonstrated to the
Board before they can make a determination. This is a residential area and the pre-existing nonconforming use for
all three buildings must be established.
Mr.(Stuart)Bornstein reviewed the plans. He stated there is currently 16,800 square feet of building. Not counting
the basement,they are proposing 17,486 square feet of building,including the balconies and garages or about 686
square feet more than exists on site. If necessary,Mr.Bornstein will"size down'the buildings by 686 square feet.
Mr.Bornstein reported there was boat material and construction material storage in the building when he purchased
it. It was not an active warehouse use. Presently,in the candle factory building there are automobiles and
construction materials. The big barn building had material from the Hyannisport Club. The school house also had
storage materials. Mr.Bornstein indicated he will bring in documentation if necessary.
Continuation.of Public Comments: Elihu Stone commented on the"timing"of the hearing which is being held in
the winter time when the summer residents in Town are not around. He is concerned with the number of bedrooms
2
and bathrooms since the building is close to the marsh and School House Pond. He said the area is very busy with
children in the summer and this project would add to the traffic in the area. Steve O'Neil spoke in favor of the
project. He is a realtor and reported he has received many calls from people seeking out this type of housing. There
are seventeen letters of opposition in the file.
Attorney Ford addressed the Board again. He reported in 1975 a group of neighbors in this area,brought an action
to Superior Court seeking a mandatory injunction ordering the Building Inspector to cease the commercial operation
on the 2nd floor of the school house and the warehouse. An injunction was issued stating the use of the second
floor of the school house and the warehouse use were illegal. The nonconforming rights had lapsed. Mr.Ford
submitted a copy of that order of mandatory injunction.
No one else spoke in favor or in opposition to this appeal.
The Board was still concerned with the calculations of the buildings. The Board reminded Mr.Bornstein that all the .
square footage currently on site must be dedicated to the nonconforming use if it is to be utilized in the change of
one nonconforming use to another nonconforming use. He must establish that the use-in part or whole-has not
been abandoned.
F ,
For clarification,the Board requested the following from the applicant:
• accurate calculations of the total square footage of all proposed units/buildings,
• time frame regarding the nonconforming uses for each building from 1980 to date,
• the total square footage in each building that was utilized for the nonconforming use from 1980 to date,-
• confirmation of the on-going nonconforming use status of each building - give the nature of that use
(Example: seasonal,year-round,commercial,residential),
• confirm that each building(to the fullest extent possible)has been continuously used and not abandoned in'
any portion up to the present date and,
• Board of Health presentation information pertaining to nitrate loading.
The Board asked if the units were to be year round or seasonal rentals. Mr.Bornstein reported that their bylaws will
not allow_for_the units to be rented-for.less_than one-year._They_can not be rented by.the_week-or month....-The-Board-,
asked that the Condominium Bylaws be available if they wish to review them.
This project will be before the Conservation Commission on January 5, 1999.
It was decided to continue Appeal Number 1998-138 to January 13, 1999 at 7:30 PM.
NOTE: Public Comment is not closed.
David Rice heard the testimony and can replace any Board Member if necessary.
Excerpt from the Minutes of January 13,1999
Appeal Number 1998-138 Chatham Real Properties;Inc.
Board Members originally hearing this appeal were Gail Nightingale,Ron Jansson,Thomas DeRiemer,Elizabeth
Nilsson,and Chairman Emmett Glynn. Gail Nightingale is not present this evening and will be replaced by
Alternate Board Member David Rice,who heard the testimony at the previous hearing. Therefore,the Board:
Members hearing these appeals(tonight)are Ron Jansson,Tom DeRiemer,Elizabeth Nilsson,David Rice,and
Chairman Emmett Glynn. Aaron Bornstein represented himself before the Board. Also present were Stuart
Bornstein and Dan Ojala of bownCape Engineering. This appeal was continued from December 16, 1998.
At the Hearing of December°16th'the Board Members requested the following information from the applicant:
• accurate calculations of the total square footage of all proposed unitsibuildings,
• time frame regarding the nonconforming uses for each building from 1980 to date,
• the total square footage in each building that was utilized for the nonconforming use from 1980 to date,
• confirmation of the on-going nonconforming use status of each building - give the nature of that use
(Example: seasonal,year-round,commercial,residential),
+ confirm that each building(to the fullest extent possible)has been continuously used and not abandoned in
any portion up to the present date and, -
• Board of Health information pertaining to nitrate loading.
3
A .
On January 08, 1999,the applicant submitted the following materials to the file:
• existing gross floor plan calculation dated December 23, 1998,
• proposed tenant clause for the Condominium Bylaws,
• December 18, 1998 letter from Lee Eiler,
• December 22, 1998 letter from Daniel St.Pierre,
• traffic generation calculations,and
• nitrogen loading calculations.
On January 12, 1999,the applicant submitted to the file a letter from Donald P.MacKeag dated January 12, 1999.
Aaron Bornstein addressed the Board and reviewed the letters he had previously submitted to the file. He reported
the total gross square footage is 15,137 feet of gross floor area as derived by an exact field measurement performed
on December 23, 1998 by Peter Dimeo. The square footage for the proposed condominium project is 14,626 square
feet or 511 square feet less than what is currently on site.
The second floor of the school house building was condemned around 1985 due to lack of a second means of
egress. In Mr.Aaron Bornstein's opinion,the use of warehouse storage was not condemned and was not abandoned
so that square footage should be considered when calculating the total square footage on site. In 1987,that second
floor was considered in the total square footage when this project originally came before the Zoning Board of
Appeals.
Stuart Bornstein reported the second floor of the school house building was used as an office and then for storage.
When he bought the property there was"junk"on the second floor. The square footage on that second floor is only
850 sq.ft.and if the Board decides not to include that amount in their calculations,he would be willing to
"downsize"the condominium project to meet the GFA limitation.
Regarding the basement,Mr.Aaron Bornstein stated the height and use will comply with the Zoning Ordinance and
as approved by the Building Department. He stated the basements will only house mechanical systems with no
plumbing and will not be used for living quarters. The basement is approximately 7.9 feet in height.
The plans submitted to the Board did not have complete calculations. They were reviewed briefly by Dan Ojala and
Stuart Bornstein. Mr.Bornstein stated the condominiums will be two stories only and under the thirty foot height
limitation in the Zoning Ordinance. The Board indicated the documents submitted were incomplete and stated that
more complete drawings were needed.
Three letters were submitted by the applicant in an effort to establish the legal pre-existing nonconforming use.
The letters from Lee Eiler,Daniel St.Pierre and Donald P.MacKeag refer to"a use"from 1987-1997. They refer
to a personal use for personal warehouse storage. The Board was concerned because these were"just letters". They
are not affidavits or legal documents. In the Board's opinion,they do not establish a legal pre-existing
nonconforming use of a commercial nature. The total square footage currently on site must be dedicated to the
nonconforming use if it is to be utilized in the change of one nonconforming use to another nonconforming use.
But more important,the legal pre-existing nonconforming use must be established and the applicant must establish
that the use-in part or whole-has not been abandoned. The Board questioned if that could be done with"just
letters".
The Board and Dan Ojala discussed the nitrogen loading calculations for this site. A letter dated January 5, 1999
from DownCape Engineering states,"...the project will produce approximately 9.9 parts per million of NO3-N in
the groundwater down gradient to the site. As a comparison,the federal drinking water standard is 10 parts per
million." The Board questioned the affect this would have on the pond located behind this site because the amount
of nitrate loading is higher than allowed under the town standards and under the State DER Also submitted was a
letter from DownCape Engineering entitled"Cape Cod Commission Technical Bulletin 91-001". Dan Ojala agreed
with the figures submitted but stressed the county's standards and the Town of Barnstable Board of Health figures
of 5 parts per million are for a site located in a Zone 2 or a nitrogen sensitive area-which this site is not. Based on
this site location,there are no Federal,State or local regulations on nitrates into the ground water from this site. Mr.
Ojala is of the opinion,this project will have little impact on the pond and little impact on the environment
4
J The Board reviewed the letter from the Board of Health giving approval for this project. The ZBA Members were
still concerned because this letter did not say if they[the Board of Health] looked at the nitrate loading coming from
this site. The Board requested a letter be sent to the Health Division asking whether or not the amount of nitrate
loading in this area by this proposal is going to represent a problem.
This project was also before the Conservation Commission on January 5, 1999. Mr.Aaron Bornstein reported at
that hearing,there was discussion regarding a drainage pipe running under this site put there by the Town(without
the owner's permission and without any easement rights). This pipe allows the road to drain into the pond. The
applicant and the Town's Engineering Department are exploring where-and how-to move that pipe. That hearing
was continued to March 2, 1999.
The Board asked about the floor plan. There are to be a total of fourteen(14)bedrooms. The plans show a loft in
all of the units. Mr. Stuart Bornstein indicated that these are not additional bedrooms-but rather"sought after
areas".-more like a"play room for adults"-a place for a television,computer,office equipment,exercise
equipment,etc. The Condominium Bylaws will state that each condominium shall have no more than two
bedrooms with no more than two people per bedroom. This area is not intended to be a bedroom. Dan Ojala
indicated the septic system is based on fourteen(14)bedrooms,but it could handle more for a short period of time
(a few years). Mr.Ojala stated he will bring the floor plan showing the loft to the Board of Health and make sure
this meets their approval. Stuart Bornstein stated he could enlarge the septic system if the Board wants,but he does
not want to encourage more bedrooms on the site. Three of the units will have walkout basements and if the Board
wishes,Mr.Bornstein indicated they would be willing to eliminate the walkouts,so as to discourage the basements
from being used as living areas.
Public Comments: Attorney Ford spoke. He is representing the"Friends of Hyannisport"which is a group of'
twenty-seven local residents,some of whom are direct abutters. He stressed the letters submitted by the applicant
from Mrs.Morey,Lee Eiler,Mr. St.Pierre and Mr.MacKeag,all demonstrate that the property was used from 1989
to 1997 for the storage of personal items. This is not a commercial use and therefore the commercial use and any
pre-existing nonconforming use has lapsed. 'He reminded the Board that the applicant must establish standing by
proving that this is pre-existing nonconforming use and that the use h n P g P g g as of been abandoned. He told the Board that
the abutters he represents are in favor of some sort of development on this property,but think it should be a smaller
project. He also questioned the bedroom count. The loft is 290 square feet and capable(in Mr.Ford's opinion)of
being used as another bedroom. Mr.Ford also stated that he personally was at the Conservation Commission
hearing and indicated that ConCom had other concerns not mentioned(tonight)by the applicant.
In rebuttal,Stuart Bornstein stated that the use of these building has been for storage-personal and/or commercial.
Mr.Bornstein reported that he was told by the Building Commissioner that if you are storing things whether
commercial or personal-it is considered a"warehouse". [Note:The Building Commissioner was not present.] Mr.
Bornstein is storing both personal and commercial items in these buildings. This is the pre-existing nonconforming
use on the site and he has not abandoned that use. There are three buildings on the site. The candle factory,the
warehouse,and the school house. Mr.Bornstein reported the candle factory basement is now being used as a
storage area for his autos. The warehouse is being used to store building materials. The old school house is too
fragile to be used for anything at this time.
Dan Ojala reported he was not at the Conservation Commission Meeting but stated this is considered an apartment
use and Title V is regulated by the number of bedrooms on the site. This proposal will have 14 bedrooms and that is
what the Board of Health approved for this proposal.
Ron Jansson questioned the pre-existing nonconforming use. The nonconforming use on this site was the candle
factory. The structures on the property,which were used for storage,were accessory to the candle factory use. The
candle factory stopped its operation in 1987. Mr.Jansson asked,if the nonconforming use stopped,and there was no
request to change from one nonconforming use to another nonconforming use,how can an accessory storage use
} (which was accessory to the nonconforming use)continue on the site. A storage use on the site would be a
nonconforming use but would it be a legal nonconforming use. Mr.Jansson asked whatt(if any)is the legal pre-
existing nonconforming use on this site. This must be established to show standing.
Stuart Bornstein stated the use on the site goes back to 1943 for many,many different uses-not just a candle
factory. Chairman Glynn reminded Mr.Bornstein that the Board(at the last hearing)had requested the applicant
provide a time frame regarding the nonconforming uses for each building from 1980 to date. That information
would help to establish the on-going use on the site.
5
e
Aaron Bornstein reported the Building Commissioner has specifically said"the site has not been abandoned." [It
should be noted that nothing was submitted in writing to that affect from the Building Commissioner and he was not
present.]
Attorney Ford addressed the Board and indicated he was of the opinion that the storage use on the site was directly
related to the candle factory on the site-which has been abandoned. He feels the storage uses on site are not
nonconforming but rather noncomplying.
Mr.Stuart Bornstein again reviewed the four letters submitted to demonstrate the pre-existing nonconforming use.
He indicated that this proposal will be an asset to the neighborhood and something that will fit in with the
neighborhood. Not all the neighbors are against this project-just some.
The Board also requested the January 5th minutes from the Conservation Commission regarding this proposal be
obtained from the Conservation Division. Some of the Board Members felt the applicant had not proved standing
before the Board. If they can not establish that there is a legal pre-existing nonconforming use - and that the use
has not been abandoned - they can not go any further. The Board stressed that"letters"are not enough.
They must present documents,such as affidavits,to legally demonstrate the pre-existing nonconforming use. The
Board was willing to continue this hearing-one last time-to allow the applicant time to get the documents needed
to prove the legal pre-existing nonconforming use. If the legal pre-existing nonconforming use is established to the '
Board's satisfaction,then a more complete set of plans with exact calculations and measurements must be.presented
to the Board. [Note:No full set of plans have ever been submitted to the file.]
Chairman Glynn reviewed what had been requested at the December 16th meeting. These items were not presented
iri the proper manner and again he requested the applicant provide:accurate calculations of the total square footage
of all proposed units/buildings;the time frame regarding the nonconforminguses for each building from 1980 to
g
date;and confirmation of the on-going nonconforming use status of each building. This must be done on a more
"formal"level. Chairman Glynn was also concerned with whether the Board of Health has addressed the matter of
the number of bedrooms on site. He would like a letter from the Board of Health regarding the number of bedrooms
on site and the proposed septic system. The Board Members agreed if the applicant can not fully establish the legal
pre-existing nonconforming use,he should not spend the money on other concerns of the Board,such as full scale
plans. But if he does establish it,then the applicant must provide the other information the Board has requested.
The Board requested a letter be sent to the Town Attorney. They questioned if the legal pre-existing nonconforming
use on this site was that of a candle factory,and the storage use on the site was accessory to the candle factory,then
when the candle factory use stopped,could the accessory use of storage now be considered the legal pre-existing
nonconforming use.even though no relief was granted to change from one pre-existing nonconforming use to
another nonconforming use? If the storage on site is non-candle related, is that a different use? Is the storage now
the primary use-not the accessory use-and is it a legal,pre-existing nonconforming use? Further,if the storage is
now considered the legal pre-existing nonconforming use,is there any differentiation between personal and
commercial storage.
It was decided to continue Appeal Number 1998-138 to March 17, 1999 at 8:00 PM.
NOTE: The applicant signed an extension of time.
Public Comment is not closed.
Excerpt from the Minutes of March 17, 1999
Appeal Number 1998-138 Chatham Real Properties,Inc.
At the start of this hearing,Chairman Emmett Glynn read a letter dated March 09, 1999 from Aaron Bornstein. It
states, "I am requesting a continuance to April 7th for the reference Appeal for Chatham Real Properties. We are in
the process of scaling down the project so that it might better fit into the surrounding area."
At the previous hearing for this appeal,the Board had requested a letter be sent to the Town Attorney questioning
the legal pre-existing nonconforming status of the lot in issue. The Town Attorney responded in a letter dated
March 05, 1999 in which he states, "Please be advised that the petitioner's attempt to conceptually separate the use
of part of the locus as storage,which was accessory to the principal candle factory use previously established as a
6
pre-existing,nonconforming use,and to.invest that accessory use for the status of a protected principle use,is
inappropriate." If there is no longer a pre-existing nonconforming use on the site,the Board questioned how they
could grant relief even if the project were being scaled down as the Applicant has indicated. Because the Applicant
was not present this evening,they asked for a letter to be sent to him stating he must be prepared on April 7 to
address the issue of the Town Attorney's letter. The Board suggested the Applicant consider withdrawing without
prejudice and refiling a new application. When he refiles,the application may want to consider applying for a Use
Variance.
It was decided to allow the Applicant's request for a continuance and continue this appeal to April 07t'at 7:30 PM.
Appeal Number 1998-138 is continued to April 07,1999 at 7:30 PM.
4
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7
' Town of Barnstable
$ Zoning Board of Appeals
► � Planning Department
sy9. 230 South Street,Hyannis,Massachusetts 02601
(508)790-6225 Fax(508)790-6288
January 22, 1999
Robert Smith,Town Attorney
Ruth Weil,Assistant Town Attorney
Town of Barnstable,Attorney's Office
230 South Street,
Hyannis, Massachusetts 02601
Reference: Appeal Number 1998-138-Chatham Real Properties, Inc.
Special Permit pursuant to Section 44.5(1)Change of a Nonconforming Use to Another
Nonconforming Use
Dear Mr. Smith and Ms.Weil:
At the January.13, 1999 hearing of the Zoning Board of Appeals, the Board heard continued testimony of
the above referenced appeal(continued from the December 16, 1998 hearing). During the Board's
deliberation, questions were raised concerning the legal pre-existing nonconforming use of this site.
The applicant purports that warehouse storage is the legal pre-existing nonconforming use of the property.
and is seeking to change that use to that of a 7 unit condominium residential use. The Board questioned
if the legal pre-existing nonconforming use on this site was that of a candle factory,and the storage use
was accessory to the candle factory,then when the candle factory use stopped,can the accessory use of
storage now be considered the legal pre-existing nonconforming use? No relief was ever granted to
change from one pre-existing nonconforming use to another nonconforming use. If the storage on site is
non-candle related, is that a different use altogether or is it now the primary use and if so, is it a legal pre-
existing nonconforming use? o
Further, if storage is now considered the legal pre-existing nonconforming use, is there any differentiation
between personal and commercial storage?
I have attached a copy of the`meeting minutes of both the December 16, 1998 and the January 13, 1999
hearings along with'other materials related to the issue for your review.
On behalf of the Board Members 1 thank you for your assistance. This appeal has been continued to
March 17, 1999. Materials for that meeting will be transmitted to the Board.Members on March 11, 1999.
Should you need additional information please contact Debbie Lavoie or Alan Twarog at extension 4785.
Aime
ctfully,
tt Glynn, Ch ' n
Me-zba-letters-L-012M.doc
Attachments:, Meeting Minutes
Letters to establish legal pre-existing nonconforming use
Application A 2 1 1
TOWN OF BARNSTABLE
�►RMARE. OFFICE OF TOWN ATTORNEY
MA89
•b�q. �� 367 MAIN STREET
7EDMK�e HYANNIS, MASSACHUSETTS 02601-3907
ROBERT D.SMITH, Town Attorney TEL. (508)862-4620
RUTH J. WEIL,Assistant Town Attorney FAX#(508)775-3344
CLAIRE R. GRIFFEN, Legal Assistant
THERESA M.CAHALANE, Legal Clerk
March 5,.1999 D Q
Emmett Glynn, Chairman p 5
Barnstable Zoning Board of Appeals
367 Main Street
TOWN OF BARNSTABLE
Hyannis, Massachusetts 02601 ''"�►Nr"�?ap OFAppEALS
Re: Appeal Number 1998-138 -Chatham Real Properties
Dear Mr. Glynn: -
This is in response to your inquiry of January 22"d relating to the above
appeal.
Please,be advised that the petitioner's attempt to conceptually separate the
use of part of the locus as storage, which was accessory to the principal candle
factory use previously established as a pre-existing, non-conforming use, and to
invest that accessory use with the status of a protected principal use, is
inappropriate. The same approach was disapproved in the case of
Mioduszewski v. Town of Saugus, 337 Mass. 140,(1958), a copy of which is
attached.
I trust this is responsive to your question. If not, please be back in touch.
Sincerely yours,
Robert D. Smith .
4 Town Attorney
s
*655 148 N.E.2d 655
337 Mass. 140
Alfred J. MIODUSZEWSKI et al.
V.
TOWN OF SAUGUS.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued Feb. 5, 1958.
Decided March 5, 1958.
Proceeding on petition filed in Land Court b owners of certain remises to
Y P
determine validity and effect of zoning by-law. From adverse decree of the Land
Court, Joseph R. Cotton, J., the petitioners appealed. The Supreme Judicial
Court, Cutter, J., held that under town zoing by-law adopted in 1928 providing
that no land in single residence districts shall be used except for certain
purposes including farms and that when nonconforming use has been
discontinued for one year, it shall not be re-established, breeding of collie and
shepherd dogs used in connection with cow farm between 1941 and 1945 did
not constitute continuation of nonconforming use consisting of breeding of
beagles from 1928 until 1941, and owner was not entitled to breed and train
greyhounds on premises commencing in 1945 on ground that it constituted a
continuing nonconforming use.
Decree affirmed.
1. ZONING AND PLANNING k302
414 ----
414V Construction, Operation and Effect
414V(C) . Uses and Use Districts
414V(C)2 -Accessory Uses and Buildings
414302 Particular accessory uses.
Formerly 268k601(26)
Mass. 1958
Under zoning by-law adopted by town providing that, in single residence
districts, no land shall be used except for certain purposes including farms, and
such accessory uses as are customarily incidental to any of such uses,
maintenance on premises of what was essentially a greyhound racing stable was
not reasonably to be regarded as accessory of farm or as making premises a
farm.' G.L.(Ter.Ed.) c. 40A, § 22 as amended by St.1954, c. 368, § 2 and c.
128A, as added by St.1934, c. 374, § 3; c. 185, § 16 1/2) as amended by
St.1947, c. 449, § 3 and c. 212, § 26A, as added by St.1935, c. 229, § 1 and c.
240, § 14A, as added by St.1934, c. 263, § 2 (M.G.L.A.).
I
i
2. ZONING AND PLANNING k279
414 ----
414V Construction, Operation and Effect
414V(C) Uses and Use Districts
414V(C)1 In General
414278 Particular Terms and Uses
414279 Agricultural uses; farm; nursery; greenhouse.
Formerly 268k601(22)
Mass. 1958
Under town zoning by-law providing that in single residence districts no land'
shall be used except for certain purposes including farms and such accessory
uses as are customarily incidental to permitted uses, premises for sale and
distribution only of milk not produced on the premises was not farm use within
meaning of by-law, and even if raising of racing dogs could be regarded as use
accessory to farm, there was no farm use to which it could be accessory.
G.L.(Ter.Ed.) c. 40A, § 5 as amended by St.1954, c. 368, § 2; § 22 as amended
by St.1954, c. 368, § 2; c. 140, § 136a, as added by St.1954, c. 320, § 1, as
amended by St.1943, c. 111, § 1; c. 185, § 1 G 1/2) as amended by St.1947, c.
449, § 3; c. 212, § 26A, as added by St.1935, c. 229, § 1; c. 240, § 14A, as
added by St.1934, c. 263, § 2.
3. ZONING AND PLANNING k338 ,
414 --
414VI Nonconforming Uses
414336 Discontinuance or Abandonment
414338 .-Change of use.
Formerly 268k601(24)
Mass. 1958
Under town zoning ,by-law adopted in 1928 providing that no land in single
residence districts_shall be used except for certain purposes including farms and
that when nonconforming use has been discontinued for one year, it shall not be
re-established, breeding of collie and shepherd dogs used in connection with
cow farm between 1941 and 1945 did not constitute continuation of
nonconforming use consisting of breeding of beagles from 1928 until 1941, and
owner was not entitled to breed and train greyhounds on premises commencing
in 1945 as continuing nonconforming use. G.L.(Ter.Ed.) c. 40A, § .5 as amended
'by St.1954, c. 368, § 2 § 22 as amended by St.1954, c. 368, § 2 and c. 140, §
136A, as added by St.1934, c. 320, § 1, as amended by St.1943, c. 111, § 1 and
c. 185, § 10 1/2) as amended by St.1947, c. 449, § 3 and a. 212, § 26A, as,
added by St.1935, c. 229, § 1 and c. 240, § 14A, as added by St.1934, c. 263, §
2 (M.G.L.A.).
l
4. APPEAL AND ERROR k907(2)
30 ----
30XVI Review
30XVI(G) Presumptions
301<906 Facts or Evidence Not Shown by Record
30k907 In General
30007(2) Failure to set forth evidence in general.
Mass. 1958
Where evidence is not reported, .findings and conclusions of trial judge must
be taken as true when there is nothing to show them to be inconsistent with
other facts found or with the pleadings.
*656 Israel Bloch, Lynn, for petitioners.
C. Carroll Cunningham, town consel Boston James J. Fox Lynn, with him
for respondent.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and
CUTTER, JJ.
CUTTER, Justice.
This is a petition filed in the Land Court under G.L. (Ter.Ed.) c. 240, § 14A,
and c. 185, § 16 1/2), [337 Mass. 141] by the owners of certain premises in
Saugus to determine the validity and effect of the zoning by-law of Saugus as
applied to the premises. (FN1) The Land Court ruled that the premises were
zoned, and may only be used, for residential purposes; that the business of
'breeding, raising and training greyhounds * * * for racing' is not allowed under
the zoning by-law; and that the zoning by-law placing the land in a residential
district is valid and 'of full force and effect as applied to' the premises. The
petitioners have appealed. The general subject matter of maintaining a
greyhound kennel on these or,similar premises in Saugus has been before this
court twice previously. Sheehan v. Board of Appeals of Saugus, 332 Mass. 188,
124 N.E.2d 253; Meadows v. Town Clerk of Saugus, 333 Mass. 760, 133 N.E.2d
498. See also Marotta v. Board of Appeals of Revere, Mass., 143 N.E.2d 270.
r
The Land Court judge found the following facts: The petitioners bought
three lots, containing some 10 to 12 acres in the aggregate, in part in 1923 and
in part a few years later. When the petitioners moved in, the premises contained
a dwelling, a barn, and a chicken coop. One of the petitioners bought two cows
and a horse, started a small garden, and sold some produce. In 1926 he had 16
cows, two horses, pigs, chickens, pigeons, and a collie and a shepherd dog to
herd the cattle. By 1928 he had a bull and 38 cows 'and boarded some.' He had
bought five beagles and also ran a dairy which sold 480 quarts of milk per day.
*657 He gave up keeping pigs in 1928 but bred beagles and sold and gave
away the puppies until 1941 'and thereafter concentrated on the dairy-business'
until 1947 when he sold his last cow. He also bred the collie and the shepherd.
He had cats as long as he had cows and sold some cats and.kittens. From 1947
to 1952 he bought milk and sold it.
[337 Mass. 142] In 1945, one of the petitioners and his son began keeping
pracing greyhounds and have continued to breed, raise, sell, and train them on
the premises. Since 1953 the son has owned the dogs, and the activities with
respect to them now constitute the only business on the premises. The dogs
now there are worth $20,000 and 33 of them are qualified for racing. During the
winter months the dogs are taken to Florida for racing and are kept on the
premises from April through September. The petitioners' 'only really usable area
* * * up to around 1945 was a little over an acre of land' because the land was
swampy or sloped sharply. Now kennels and yards, out of sight from the street,
have been built for the dogs on a slope behind the cellar of a barn which has
burned down.
Near the premises on the same side of the street are several residences and
there is another residence on the opposite side of the street. On a nearby street
there are 12 or more new ranch-house type dwellings. The rear of the premises
is wooded and wild and adjoins town land. A part of the premises is only a little
more than 500 feet west of the Newburyport turnpike. In a strip within 500 feet of
the turnpike the zoning by-law permits light industry.
The son of the petitioners obtained a building permit for a kennel in 1952 and
built it and from 1947 to 1954 various licenses to maintain a dog kennel on the
premises were granted. Such licenses were denied in 1955 and 1956. See
Meadows v. Town Clerk of Saugus, 333 Mass. 760, 764-765, 133 N.E.2d 498,
501, which held that the town clerk could not be compelled by a writ of
mandamus 'to issue a license covering a location in a residence district where
the maintenance of the kennel would be in violation of the zoning by-law:'
[1] In 1928 the town adopted a zoning by-law which became effective
January 8, 1929. Section 4 of this by-law provided in part that, in single
residence districts, and the locus was in such a district, 'no land * * * structure or
parts thereof shall be used, except for one or more of the following purposes: * *
*. 6. Farms * * * and truck gardens, and the [337 Mass. 143] sale of produce
raised on the premises * * *. 10. Such accessory uses as are customarily
incidental to any of the above uses subject to the provisions of section thirteen,'
which provided that accessory uses 'shall be such as do not-alter the character
of the premises on which they are located or impair the neighborhood. Section
. 14 provides that any 'building * * * or premises which, at the time of the adoption
of this by-law, is being put to a non-conforming use may continue to be used for
the same purpose. * * * A non-conforming use * * * shall not be changed to a
less restricted use. * * * In residence districts, when a non-conforming * * * use
has been discontinued for* * * one year, it shall not be reestablished
The trial judge found(a) that when the by-law became effective the premises
were being used as a farm and that the principal business was a dairy; (b) that
the breeding of cats and dogs on the premises 'was not a part of the business of
farming; (c) that 'the business of breeding, raising and training greyhounds * * *
for racing * * * is manifestly dissimilar to the farming and dairy business
previously carried on' and 'is not farming, or an accessory use customarily
incidental to it, or a permitted non-conforming use * * * within the meaning and
intent of the' by-law; (d) that, because the dairy was discontinued in 1952, 'the
business of farming * * * has been abandoned for more than one year'; (e) that
the petitioners *658 'are not conducting a dairy farm nor using the locus for
agricultural purposes'; (f) 'that the locus and surrounding area is residential in
character' and that the use for kennels as at present 'would impair the
neighborhood and do violence to the intent of the zoning' by-law; (g) that 'all of
the rear of [the] locus is usable as accessory to dwellings'; and (h) that the
premises are 'properly zoned as residential and reasonably usable as such, and
such zoning is not clearly arbitrary and unreasonable.'
1. Although the keeping of farm dogs and beagles in 1928 might perhaps
have been regarded as a use accessory to farming operations, the maintenance
on the premises of what [337 Mass. 144] is essentially a greyhound racing stable
is not reasonably to be regarded as an accessory of a farm or as making the
premises a farm. See Town of Lincoln v. Murphy, 314 Mass. 16, 20, 49 N.E.2d
453, 146 A.L.R. 1196, where a commercial piggery not connected with any other
farming operations was held not to be a farm within the meaning of the zoning
by-law. Pigs are farm animals and raising them could much more reasonably be
regarded as farming than the maintenance of dogs intended for use solely for
commercial racing connected with a pari-mutuel system of wagering rather than
with any agricultural pursuit. See G.L. (Ter.Ed.) c. 128A, inserted by St.1934, c.
374, § 3. See Eberlein v. Industrial Commission, 237 Wis. 555, 558, 297 N.W.
429 (raising foxes not farming); Berry v. Recorder's Court of West Orange, 124
N.J.L. 385, 389, 11 A.2d 743 (riding academy and stable not farming); City of
Omaha v. Gsantner, 162 Neb. 839, 844, 77 N.W.2d 663 (dog kennel not a
commercial livestock farm operation); Dunkly v. Erich, 9 Cir., 158 F.2d 1, 2
(raisers of trout for human consumption not farmers). See also Murphy v.
Mitchcock, 150 Mist. 36, 268 N.Y.S. 385 (dog kennel held to be a nuisance).
[2] The trial judge found that the last cow was sold in 1947 and thereafter
the dairy business was carried on by buying milk and selling it and that even
when cows were maintained, hay and grain. were bought and no cow feed was
raised on the premises. There were greyhounds on the premises as early as
1945. However, even if the raising of racing dogs, not shown to be used or
useful in any, agricultural pursuit, could be regarded as a use accessory to a
farm, there was after 1947 no farm to which the use could be an accessory.
Jo
Between 1947 and 1952 the premises were used for the sale and distribution
only of milk not raised on the premises. Compare Deutschmann v. Board of
Appeals of Canton, 325 Mass. 297, 299, 90 N.E.2d 313. This cannot be
regarded as a farm use of the premises. Because there has been no use of the
premises for 'agriculture, horticulture or floriculture',for more than five years,
G.L(Ter.Ed.) c. 40A, § 5, inserted by St.1954, c. 368, § 2, relied upon by the
petitioners, is not relevant.
[3] 2. The petitioners contend that the raising of dogs constituted[337 Mass.
145] a nonconforming use of the premises in existence when the by-law was
adopted in 1928 and continuously carried on until the present time. This, they
contend, brings the use within § 14 of the by-law permitting preexisting
nonconforming uses to be continued. This contention rests upon the finding that
one petitioner owned five beagles in 1928 and bred beagles until 1941; that he
bred a collie and a shepherd dog used in connection with the cow farm, and
continuously raised and maintained greyhounds on the premises from 1945 to
the present. The petitioners contend that these operations constitute the
continuous operation of a kennel, as defined in G.L. (Ter.Ed.) c. 140, § 136A,
inserted by St.1934, c. 320, § 1, as amended by St.1943, c. 111, § 1. . That
definition has relevance only to kennel licenses and is not of importance in
relation to zoning. The interval between 1941, when the beagles were given up,
and 1945, when greyhounds were first brought in, may well have fatally
'interrupted any use of the premises for a kennel, for the two farm dogs would not
seem to constitute a kennel even under *659. the definition in § 136A. Even if
the use could be said to be continuous, the later use was radically different from
the earlier use. Within the purpose and intent of the zoning by-law, having upon
a property as its only business 33 dogs qualified for, and used for, racing is
something very different from having on a dairy farm, as an incidental activity,
five beagles and two farm dogs. The subsidiary facts found by the trial judge
and common experience plainly justified him in finding 'that the business of
breeding, raising and training greyhounds * * * for racing * * * is manifestly
dissimilar to the farmining and dairy business previously carried on,' with its
minor and incidental raising of a few dogs. It was 'a difference in quality and not
merely in degree.' See Town of Marblehead v. Rosenthal, 316 Mass. 124, 128,
55 N.E.2d 13, 15; Everpure Ice Manuf. Co., Inc., v. Board of Appeals of
Lawrence, 324 Mass. 433, 437, 86 N.E.2d 906.
[4] 3. There is nothing in the record which suggests that there has been any
invalid spot zoning here. The premises, under the [337 Mass. 1461 zoning
by-law, can be used as a farm, as they were used prior to 1947. Compare Pratt
v. Building Inspector of Gloucester, 330 Mass. 344, 345-347, 113'N.E.2d 816.
The trial judge, who took a view of the premises and the surrounding
neighborhood, has found 'that the locus and surrounding area is residential in
character' and 'all of the rear of [the] locus is usable as accessory to dwellings.'
His findings and conclusions on this record, where the evidence is not reported,
must be taken:as true for nothing shows them to be inconsistent with other facts
found or with the pleadings. See Turner v. Morson, 316 Mass. 678, 680-681, 57
N.E.2d 18. This is not a case like City of Pittsfield v. Oleksak, 313 Mass. 553,
556, 47 N.E.2d 930, or Barney & Carey Co. v. Town of Milton, 324 Mass. 440,
444, 449, 87 N.E.2d 9, where facts have been shown which indicate plainly that
the imposition of residential restrictions upon the land can have no rational
relation to any of the purposes which wold justify the application of the by-law to
the locus. See McHugh v. Board of Zoning Adjustment of Boston, Mass., 147
N.E.2d 761.
4. The decree of the Land Court is affirmed. The,town is to have costs of
this appeal.
So ordered.
FN1. The town filed in the Superior Court a bill in equity under G.L. (Ter.Ed.) c.
40A, § 22, inserted by St.1954, c. 368, § 2, to enjoin the use of the premises
as a kennel for racing greyhound dogs. This bill was transferred to the Land
Court under G.L. (Ter.Ed.) c. 212, § 26A, inserted by St.1935, c. 229, § 1,
and was heard with the present case. The bill thus transferred was
dismissed without prejudice as not being within the jurisdiction of the Land
Court. The town did not appeal.
'i
• mot ,, Town of Barnstable
Department of Health,Safety,and Environmental Services
'"" S. Conservation Division
367 Main Street,Hyannis MA 02601
Office: 508-862-4093 Robert W.Gatewood
FAX: 508-790-6230 Conservation Administrator
February 18, 1999
. r FEB '1 8 W9
Mr.Emmett Glynn,Chairman TOWN OF BARNSTABLE
Zoning Board of Appeals 7QNING 1'OARn OF APPEALS
Town of Barnstable
Dear Mr.Glynn:
Your office requested that I provide a note on issues which the Conservation Commission identified
regarding the application of Chatham Real Properties for the proposed multi-unit residential building in�
Hyannisport. These are the concerns that I recall the Commission expressing:
• Concern for stormwater being discharged directly to the wetland without any attempt to infiltrate the
flow or trap the sediment.
• Concern for lack of per se compliance with the Commission's 50 ft. buffer zone regulation.
Specifically, a physical work limit at the`50 ft. arc would preclude construction of several units where
they are proposed right on the 50 ft.arc.
• Concern for the overall scope of the project with the majority of its seven residential units residing just
50-60 ft.away from the wetland. The need to explore a greater separation distance was mentioned.
The applicant argued that the restoration of the now-disturbed 50 ft.buffer should justify the request for the
foundation walls at the 50 ft. arc. However,this proposed trade-off didn't appear,immediately attractive to
the Commission.
At its March 2nd meeting,the Commission will hear this matter again. The Commission expects to see and
discuss progress made by the applicant in the issues regarding drainage and building footprint in relation to
the wetland.
Please don't hesitate to contact me afthe above number if you have further questions.
Sincerely,
AL
Robert W.Gatewood
Conservation Administrator
RG/kt
cc: Aaron Bornstein
glynnl
Apr-02-99 14:54 BARNSTABLE HEALTH DEPT 5087906304 P.01
j
�P�o�twrTo`o TOWN OF BARNSTABLE
a w OFFICE OF
AB& BOARD OF HEALTH
OQ 1639,
eta mix r. 367 MAIN STREET
HYANNIS,MASS.02601
March 26, 1999 �
-
,' 4AR
Emmett Glynn,Chairman
1 2 '
Zoning Board of Appeals ', • C4y, ,,e �
367 Main Street ,•, y;
Town of Barnstable ` pafF
RE: School House Pond Condominiums
Dear Mr. Glynn:
The Board of Health has no objection to the proposed 14 bedroom condominium building
at 537,543, 649 Scudder Avenue,Hyannisport.
The Board of Health member carefully reviewed the proposed floor pland and they
"bedroom" definition contained in Title V, the State Environmental Code. It was
determined that the floor plans show a total of fourteen (14) bedrooms. Also, it was
determined by the Board of Health that this proposal would not be limited by any .
nitrogen loading restrictions due to it's location within.an aquifer protection district(AP)
and due to the availability of public water. In addition, it is unlikely that this I project
would impact the pond.
The Board members are DQJ delighted with this proposal to construct a 14 bedroom
condominium building at this site, however, we do not have the authority to require the
applicant to reduce the number of bedrooms to less than fourteen(14).
We urge the Zoning Board of Appeals to restrict the applicant to the number of bedrooms
to fourteen; as proposed.
Sincerely yours,
Susan G. Rask, R.S. ' r
Chairperson
Board of Health -
SGR!bcs
I glynn
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The Town of Barnstable
� MAS& `0�' Department of Health, Safety and Environmental Services
Building Division
367 Main Street,Hyannis MA 02601
Office: 508-862-4038 Ralph Crossen
Fax: 508-790-6230 Building Commissioner
February 23, 1999
Attomey.Michael J..Princi
Wynn& Wynn, P.C.
310 Barnstable Road
Hyannis, MA 02601
Re: Chatham Real Properties, Inc.
537, 543, 549 Scudder Avenue, Hyannisport
019_001, 019 002, 019 003
Dear Attorney Princi:
It is my opinion that the storage use at the Hyannisport candle factory is a pre-existing,
non-conforming right that has not lapsed for 3 or more years. Consequently, it is my
opinion that cold storage is a protected use at this location.
Sincerely,
c -
Ralph M. Crossen
Building Commissioner
RMC/lbn
g990223a
310 Barnstable Road
Hyannis,MA 02601
(508)775-3665
Telecopier(508)775.1244
http://www.wynnwynn.com
ATTORNEYS • AT • LAW
Affiliate Offices
Raynham
90 New State Highway
Raynham,MA 02767
(508)823-4567
Boston
Six Beacon Street
Suite 915
Boston,MA 02108 February 10, 1999
(617)742-7146
Falmouth 49 Locust Street Mr. Ralph Crossen
F m s s,MA 02540 Building Inspector
232
Providence Town of Barnstable
(401)453-5500 367 Main Street
Fall River Hyannis, MA 02601
(508)678-5639
New Bedford
(508)999-6969 RE: Chatham Real Properties, Inc.
Zoning Board of Appeals No. 1998-138
Our file no.: 14487*88
Elizabeth K.Balaschak
Mark W.Bennett o B.Dufresne R Dear Mr. Crossen:
Robert
t D.Fredericks
Thomas M.Grimmer
Douglas A.Hale
Patricia F.Keane As you may be aware, Chatham Real Properties, Inc. has petitioned the Zoning
Catherine M.Kuzmiski*
Thomas A.Maddigan Board of Appeals for a special permit to construct condominiums on a parcel of land in
Richard A.Martone
Brenda J.McNally Hyannisport, Massachusetts which is currently being utilized as a non-conforming use.
Kevin P.McRoy
Robert F.Mills
Thomas J.Minichiello,Jr. The issue that now presents itself to the Board of Appeals, which will be
Charles D.Mulcahy
Hon.James J.Nixon(Ret.) considering the matter again on March 17, 1999, involves the nature of the non-
John J.O'Day,Jr.
Kevin J.O'Malley conforming use.
James J.O'Rourke,Jr.*
Joanne M.O'Sullivan
Thomas E.Pontes Chatham Real Properties has maintained that the non-conforming use has been in
Michael J.Princi
Rebecca C.Richardson the nature of warehousing and storage, and the ZBA has voiced the position that the
Janice E.Robbins
William Rosa* property was used for the storage of candles and therefore the candle storage only is the
Louis V.Sorgi,Jr.
John A.Walsh non-conforming use.
Michael F.Walsh
Paul F.Wynn
Thomas J.Wynn As the Zoning Enforcement Officer, I believe it is within your authority to
determine the nature of the non-conforming use. Chatham Real Properties has submitted
Or Counsel substantial information and letters(which are being memorialized as affidavits) confirming
Hon. pertJ.Muse Steadman(Ret.)
Christoh her that the property had been used for storage for as long as anyone can remember. Indeed,
James J.Lombardi,III this issue arose following the ZBA approval of a eight-condominium special permit on the
Hon.James F.McGillen,11(Ret.)
very same parcel. This resulted in litigation in or around 1980 with a Master's Report
entered as a final judgment in the Barnstable Superior Court in case no. 39412. I enclose
herewith a copy of the Master's Report which confirms our client's position. The Superior
Court found and confirmed that the use in question was for warehousing and dead storage.
*Admitted in Massachusetts and Rhode Island
t �
This position is affirmed by the Supreme Judicial Court decision in the case of
Powers v. Building Inspector. Town of Barnstable, 363 Mass. 648 (1973) where the
abutters protested the Building Inspector's failure to enforce the zoning by-laws against
the then Candle Factory ownership and insisted that the non-conforming use on the
property was in fact dead storage.
Apparently the individuals who are contesting Chatham Properties' petition are
now stating that the non-conforming use is the very limited dead storage of candles. The
enclosed decisions and historical background on this parcel indicate that the warehouse
and other buildings were often used for storage of a number of different items, and while
the Candle Factory gave a certain identity to the structures for a number of years, the
storage and warehousing use of the property since the early 1900's is well documented and
stated.
Since this issue will arise on March 17, I respectfully request that your office
prepare a written position of the Zoning Enforcement Officer with respect to the non-
conforming use.
Thank you in advance for your time and consideration of this matter.
Very truly yours,
Wynn& Wy n, P.
ae J. rmci
MJP:smo
Enclosure
cc: Stuart Bornstein
JAN-2!2-99 04 :47 PM HOLLY MANAGEMENT 508 775 8789 P. 15
1
�i COMMONWEALTH OF bSASSAt'.HUSET'rg
SUPERIOR COURT
1! BARNSTABLE,SS. No. 39412
I'
11BUILDING INSPECTOR Of ~
the TOWN OF BARNSTABL .
�! P1a1ntS.f£ ) MOTION TO CONFIRM 1
V. ) MASTER'S REFORT AND FOP
ENTRY OF =c;MENT THEREON
JOLD HARBOR INDUS
T
R
I
E
S
aET ALAnefend )
,.
The LsEendants move that the Master' s Report in the
! above Case be confirmed and that judgment enter in accordance
therewith.
,1 old Harbor Industries et al �y
�4 By their AttorneY$t I
FERN, AN DE RSO DONAHUE & JONES!
00*
J IL !
,
I
c By
rd C An erson, tsq•
43 aan St. - Box 518
Corp bwl� E� 6s Hyannis, MA 02601
Tel : (617) 775-5625
Cie
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT'
BARNSTABLE, ss F.a�r��T::e�c..��. uperior Court
' o. 39 412
FILED JUN 241980,
BUILDING INSPECTOR of the ) I�'?'-��' - t'�T �' -ZR
TOWN OF BARNSTABLE Glorle
V. ) Master's Report
OLD HARBOR INDUSTRIES )
.so
The Building Inspector, of the Town of Barnstable
brought an action alleging that the defendant Old Harbor
f
Industries is carrying on activities at a location in
Hyannisport which are illegal because they are in violation
of the zoning by-law of the Town of Barnstable and more
importantly, that these activities are illegal because they
are beyond the scope of any protection which such location
.may have once enjoyed as * a prior non-conforming use.
'An abutter, - Charles. .Powers , was allowed to intervene
making the same. allegation and both the Building Inspector
and the intervenor seek a permanent injunction against the
defendant's present activities at the Hyannisport location.
The "defendant alleges that the activity sought to
be enjoined constitutes a lawful non-conforming use, eAitled
to the protection afforded by the by-law, the general laws
and cases cited thereunder and therefore not a proper subject
for the injunction requested.'
I find and rule that the defendant 's contention is
correct.
i
The subject premises are located in that part of
the Town of Barnstable which is designated as Residence F-1.
The sole use allowed in such districts is a detached one-family
dwelling. The use presently being made of the premises is not
that of a one-family dwelling. It is used as a storage ware-
house in connection with a commercial venture whose buildings
are located in close proximity to the subject premises and
also in nearby Hyannis. ' Thus, in the absence of any other
factor this use of the premises would be illegal. The defen-
dant has invoked the provisions of the Zoning By-Law of the
Town of Barnstable which states :
"Any lawful building _or any lawful use of a building
or premises, or part thereof, existing at the time the zoning
by-law was originally adopted in the area in which such build-
ing is located may be continued although such building or use
does not conform to the provisions hereof."
Pursuant ,to the standards enunciated by the Massachu-
setts Courts a comparative analysis _must .b a made between the
use in existence on the premises at the time of the adoption
of the requirements of the by-law and the present use for which
injunctive relief is :sought.
The subject premises and related issues have pre-
viously been dealt with by the Supreme Judicial Court in the°
case of Powers v. Building Inspector of Barnstable, 363 Mass .
648. r
i
The parties have agreed and stipulated that the
facts as .found by .the Court in that case are binding in this
case and therefore reference is made to and reliance placed
on that decision (1) for the complete background of the case;
(2) for certain of the specific findings central to the dis-
position of this case; and also (3) to ascertain the level of
activity which the Powers court would deem to be within the
scope of protection of the prior lawful non-conforming use.
THE PRIOR USE
The premises in question are referred to as the
"warehouse." The following is the history of this warehouse.
"The warehouse is a corrugated metal building of
one story, sixty feet by one hundred feet in size, erected
in 1912. It was thereafter used by members of the Phinny
family for a variety of purposes including the following:
the storage and packaging .of coal and wood for sale and-.
`d delivery to customers ; the storage of ice boxes for sale;
the storage of coal trucks , oil trucks , pumps and drums ;
used. in a retail fuel oil business ; the winter storage of
fishing and marine paraphernalia; the rental of space for
.the storage of' second hand furniture, 1 '
Some aspects of the coal and fuel` oil business were
conducted in portions of the warehouse from about 1920 until
the Phinny family sold this business in 1959 . The furniture
j
i
storage occurred in about 1960 and lasted for about two years .
The storage of ice boxes occurred between -1930 and 1950. The
storage of fishing gear occurred during the winters from about
1938 or 1939 until 1959. "
The Town of Barnstable adopted its first zoning by-
law in 1949 and revised the same in 1956. At no time did the
by-law expressly permit the uses previously described, as the
premises were located in a residential district.
THE PRESENT USE.
The warehouse is one. of several buildings owned by
Old Harbor Candle or their corporate affiliates in the Hyannis
area, The business of Old Harbor is the manufacture and sale
of candles, both wholesale and retail. Old Harbor has annual
gross sales in excess of one million dollars and sells its
products throughout the United States and Canada.
At other locations are a. manufacturing plant, a
finished goods warehouse, a carton warehouse, a retail store,
and another storage warehouse.
The warehouse in question is the same dimensions as
found- by the Court in the Powers case. It. is of one story
inside with a poured concrete floor and is nothing more than a
large room. There are no partitions; walls 'or doors inside the
warehouse and it is open to the roof with the exceptions of
framing and insulation. There are no desks, offices , cabinets
or other items usually associated with the administrative
aspects of a business. As one faces the warehouse from the
street there is located at the left rear two overhead loading
doors which open -into an elevated concrete loading dock. These
doors and dock look out onto other property of Old Harbor Candle
and are substantially hidden from the view of the casual observer.
The warehouse is the third in a string of three buildings owned
by Old Harbor and located side by side on an asphalt apron.
The building adjacent to this warehouse is the ".schoolhouse" as
described in the Powers case, and the building adjacent to the .
schoolhouse is the building located on parcel one as described
in the Powers decision.
At present the warehouse contains primarily the raw
materials and component parts which ,go into the making. of can-
dles; wax, wicks , glassware. It also contains some amount .of
actual finished products . All of these items are stored in
cardboard cartons which fill the warehouse against the walls
to a height of approximately eight feet. With the exception
of two aisles on each side, the entire floor area of the ware-
house is likewise taken up by cardboard boxes stacked as high
as eight feet. No function takes place within the warehoUsel
other than the placement, storage and removal of these card-
board boxes.
All deliveries of items to be stored come from one of
the other locations of Old Harbor Candle in the Hyannis area.
No supplies are shipped' or delivered to the.warehouse direct
from any supplier and no items which leave the warehouse go
directly to any purchaser, either retail or wholesale.
Approximately twice each day in the months of June
through November a four wheel truck, consisting of a cab
and box type van arrives at the warehouse for the delivery or
removal of stored goods . The truck moves down a driveway on
the left rear of the building to the loading dock -where the card-
board boxes , are either removed or stored. The approximate time
it takes for such loading or unloading is one half hour per
trip. With the exception of such time as the truck and its
driver is engaged in these activities , no one is present at
the warehouse: During the months of December through May
these trips occur approximately three times per week.
THE TEST.
In evaluating the present use and determining whether
or not it .is protected, the following questions must be answered
1. ' Does the use today reflect the nature and purpose o
the use prevailing when the zoning by-law took effect?
Based. on the findings of the Court in the Powers case
and the evidence presented at hearing and my view of th6 premise
£ I find that it does . The singular and primary functions of the
warehouse since 1912 has been storage. The types and kinds of
items which have been stored over the years has varied from
time to time, but the basic use of the warehouse has remained
constant.
a
Any storage of goods must of necessity involve initial
delivery and subsequent removal. The fact that for the period
of time between 1920 and 1959 a coal and fuel oil business was
being conducted from the warehouse involving the use of coal
trucks, oil trucks and pumps and drums used in a retail fuel
oil business leads to the inevitable conclusion that vehicles
must have been moving to and from the warehouse' on a regular
basis and perhaps more often than daily.
The present use and level of activity is well within
the nature and purpose .of such earlier use.
2. Is there a difference in the quality or- character
as well as the degree of use?
I find no change in the quality or character of the use
or the degree of use which would constitute an expansion or ex-
tension. The prior use according to Powers included some aspects
of the coal and fuel oil business as well as the storage of items
in connection with that business . Given the character of 'a
business of delivery- of coal and fuel and storage of same, the
present use .which is clean, quiet and involves a minimum of
vehicular movement is, if anything, an improvement in the
quality or character of the use (storage) and a lessening `in
the degree.
3 . Whether the current use is different in kind in,
its effect on the neighborhood?
The present use has little or no effect on the
t
neighborhood.
No noise emanates -from the warehouse because no
activity takes place there unless a truck is making a pickup
or delivery. Such deliveries take place twice a day and the
activity lasts one-half hour each. The loading and unload-
ing takes - place in an area which is essentially obscured
from view.
Leaving aside for the moment the specific test of' .
v
Chuckran, 351 Mass . 20, and Powers , certain. language ,of the
Powers case on the overall history of the Old Harbor opera-
tion is significant.
With respect to the "schoolhouse", one of the other
buildings on the premises , the Court stated:
"During .the 1950 's the first floor was used for mis-
cellaneous storage in connection with a business conducted by
the Phinny family in the warehouse; and this floor is still
used for miscellaneous storage. "
"We ,hold with reference to the schoolhouse building
(a) - that the present use of the first floor thereof for mis-
cellaneous storage is lawful as a continuation of a non-
conforming use.
Thus , the Court found that the use by Old Harbor
of that' building for storage in connection with their present
business was consistent with the use which the Phinny family
made of the premises for storage in connection with their business.
1
i
With respect to the warehouse and in enjoining the
earlier activities there, the Powers court stated that "the
warehouse building which formerly housed'a rather dormant
operation involving primarily "dead storage" has now become
a "'veritable beehive of activity essential to the operation
of the Candle Co . 's wholesale business described above."
Those earlier activities which the court classified
as "rather dormant" encompass , at least impliedly, a wider
..r range of activity than the activity which now takes place at
the warehouse, which is a very quiet operation of storage only. -
The plaintiff- and intervenor have requested a defini-
tion and interpretation of the term "dead storage." Buch such
a definition or interpretation is not essential or critical to
a declaration of the rights of the parties to this case, as the.
findings do not hinge on any such definition if .indeed one is
possible and I make no finding or ruling on that particular ten
I find and rule that the present use of the warehouse
as described above is legal inasmuch as it is a continuation of
a prior and lawful non-conforming use.
The intervenors have in their memorandum argued that
an abandonment of that use has occurred.
Leaving to the Court the question of the propriety
of that issue being raised, 'no evidence was presented bearing
directly on that issue and from all other evidence offered at
a
the hearing, I do not find that the defendants ever demon-
strated any intent to abandon their use of the warehouse
for storage.
EdVatcdr W. K r
y
MA:� Mass. Supreme Judicial / Appeals Courts
. POWERS v. BUILDING INSPECTOR OF BARNSTABLE, 363 Mass. 648 (1973)
296 N.E.2d 491
CHARLES A. POWERS & others vs. BUILDING INSPECTOR OF BARNSTABLE.
Supreme Judicial Court of Massachusetts.
Barnstable.
October 6, 1972.
May 17, 1973.
Present: TAURO, C.J. , QUIRICO, BRAUCHER, & KAPLAN, JJ.`
Zoning, Nonconforming use of structure. Laches.
Review of cases dealing with nonconforming uses under zoning
ordinances or by-laws. (651-658]
On a petition for a writ of mandamus to compel the building
inspector of a town to enforce its zoning by-law and so to
prohibit alleged unauthorized use being made of two parcels of
land, a refusal of the trial judge to issue the writ as to one
parcel was proper where its use as a candle factory and store
was but a continuation, . although to a greater degree, of a use
prevailing at the tine of adoption of the zoning by-law, and
the issuance of the writ as to the second parcel was proper as
to a building which since the passage of the zoning by-law had
been converted from primarily "dead" storage to active
merchandise processing, but should' be modified as to another
building to reflect that while the use of the second floor for
administrative offices did not constitute a continuation of a
nonconforming use, the use of the first floor for
miscellaneous storage was valid. [658-663, 664-665)
PETITION for a writ of mandamus filed in the Superior Court on
June 21, 1968.
The case was heard by Bennett, J.
C. Michael Sheridan (John P. Garrahan with him) .for the
petitioners; Harold L. Hayes, Jr. , for the interveners Ann
Stevens Atlee & others, also with him,
Stephen C. Jones for the interveners Old' Harbor Candle
Company & others.
QUIRICO, J.
This is a petition for a writ of mandamus to compel the
respondent building inspector to enforce the zoning by-law of the
town of Barnstable and thereby to prohibit the alleged
unauthorized use being made of two parcels of land, with
buildings thereon, located on Scudder Avenue in the Hyannisport
district of the town.
Page 649
The petition was originally brought by nine persons owning land
located adjacent to or in the vicinity of the two parcels in
question. Later twenty-seven additional persons owning property
in the same vicinity were. allowed to intervene as parties
petitioner. All thirty-six of these persons -will be .referred to
collectively as the petitioners.
The owners of the two parcels in-question are Marvin Blank and
Harold Perkins, Trustees of Old Harbor Realty Trust (Realty
Trust), and the lessee of both parcels is the Old Harbor Candle
Co. (Candle Co. ) . Both the Realty Trust and the Candle Co. were
I allowed to intervene.
After a hearing on the petition the judge filed a document
entitled "Findings, Rulings, and Judgment, " which concluded with
an order that judgment enter (a) denying the petition as to the
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MA:�Mass. Supreme Judicial / Appeals Courts
• parcel on which there was a building used for the manufacture and
sale of candles (herein referred to as "Parcel 1") and (b) for
issuance of the writ as to the other lot on which two buildings
described as the Warehouse and the Schoolhouse were located
(herein referred to as "Parcel 2") . [fnl]
The case is now before us on the appeals of thirty-four
petitioners, the Realty Trust and the Candle Co. from the judge's
"Findings, Rulings, and Judgment. " (G.L.c. 213, § 1D, inserted by
St. 1943, c. 374, § 4, as amended by St. 1957, C. 155. ) The
building inspector did not appeal, and no brief was filed by him
or in his behalf in this court.
General Laws c. 213, § 1D, as amended, provides that
Page 650
an appeal from an order of the Superior Court decisive of the
issues on a petition for a writ of mandamus shall be governed by
the statutes applicable to appeals in equity. It provides further
that " [u]pon such appeal all questions, whether of fact, of law
or of discretion, which were open at the hearing before the
superior court . . . shall be open to the same extent as before
such . . . court." The evidence is reported. It includes certain
photographic and documentary exhibits but consists in large part
of oral testimony. The judge found facts and reported them at the
request of the Realty Trust and the Candle Co. G.L.c. 214, § 23,
as appearing in St. 1947, c. 365, § 2. "We are bound to examine•
the evidence. The findings of fact made by the trial judge,
however, including inferences of fact when dependent upon
credibility, ,are to stand unless plainly wrong. " Chartrand v.
Registrar of Motor Vehicles, 347 Mass. 470, 473. Crawford v.
Building Inspector of Barnstable, 356 Mass. 174, 175.
Ouellette v. Building Inspector of Quincy, 362 Mass. 272,
273.
A brief summary of certain facts common to both parcels of land
in question will be helpful in presenting the legal issues raised
by these appeals. The town adopted its first zoning by-law in
1949 and thereby placed both parcels in a Residence A district. A
major revision of the by-law in 1956 changed the classification
of both parcels to a Residence C. district. Both the 1949 and
1956 by-laws included the provision that any lawful building or
lawful use of a building or premises or part thereof existing at
the time the by-law was adopted might be continued, although such
building or use did not conform to the provisions hereof. This
saving clause for nonconforming buildings and uses was in accord
with the statutory provision (G.L.c. 40, § 26, as appearing in
St. 1933, c. 269, § 1, and as amended by St. 1952, c. 438, all
repealed by St. 1954, c. 368, § 1, and superseded by G.L.c.
•40A, § 5, inserted by St. 1954, c. 368, § 2) that a zoning "ordinance
or by-law or any amendment thereof shall not apply to existing
buildings or structures, nor
Page 651
to the existing use of any building or structure, or of land to
the extent to which it is used at the time of adoption of the
ordinance or by-law, but it shall apply to any change of use
thereof and to any alteration of a building or structure when the
same would amount .to reconstruction, extension or structural
change, and to any alteration of a building or structure to
provide for its use for a° purpose or in a manner substantially
different from the use to which it was put before alteration, or .
for its use for the same purpose to a substantially greater
extent. "
The uses made of the two parcels by the present occupant, the
Candle Co. , and by its predecessor occupants at times material to
the decision of this case will be discussed in more detail later
in this opinion. It is sufficient at this point to state that
none of the uses being made of the two parcels and the buildings
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` MA-1 Mass Supreme Judicial / Appeals Courts '
thereon when this case was started and which are continuing were
included in the various uses expressly permitted in residential'
districts under either the 1949 original zoning by-law or the
1956 revision thereof which is still in effect. Nevertheless, the
Realty Trust and the Candle Co. contend that the present uses are
lawful because they come within the protection of the statutory
and by-law provisions excluding from the application of the
by-law any lawful nonconforming uses existing when the by-law was
adopted or amended. [fn2]
The first statute enabling cities and towns of this
Commonwealth to adopt zoning ordinances or by-laws was St. 1920,
c. 601 (see now G.L.c. 40A) , and § 7 of that statute provided
that " [t]his act shall not apply to existing
Page 652
structures nor to the existing use of any building, but it shall
apply to any alteration of a building to provide for its use for
a purpose, or in a manner, substantially different from the use
to which it was put before the alteration. " All of the zoning
enabling statutes since that time have included a provision in
substantially the same language protecting the right to continue
nonconforming uses. G.L.c. 40, § 26, repealed by St. 1954, c.
368, § 1, and superseded by G.L.c. 40A, § 5, inserted by St.
1954, c. 368, § 2.
During this period of more than a half century in which
municipalities have been permitted to adopt zoning ordinances and
'by-laws, this court has been required to decide a large number of
cases involving the question whether a use being made of premises
which was not expressly authorized under the applicable zoning
ordinance or by-law was nevertheless protected as a lawful
nonconforming use. Each case involved and required a
determination and consideration of the facts of the particular
case measured against the language of the statute and ordinance
or by-law and, ultimately, a decision that there was or was not a
protected nonconforming use. By this process there has developed
a body of case law which gives guidance and suggests tests to be
applied in deciding such cases. A review of some of these decided
cases may be helpful.
Cochran v. Roemer, 287 Mass. 500, 507-508, is one of the
first to suggest a test to be applied. That test was whether the
use under attack was "different in kind" from the nonconforming
use in existence when the zoning ordinance was adopted. We said,
at 508, that it "is not different in kind . . . simply because it
is bigger." [fn3] In
Page 653
Building Commr. of Medford v. McGrath, 312 Mass. 461, at 462,
we said that "a nonconforming use of the same premises may be not
only continued but also increased in volume. " In Medford v.
Marinucci Bros. & Co. Inc. 344 Mass. 50, at 60, we said: "The
distinction is between an increase in the amount of business,
even a great increase, which does. not work a change in use, and
an enlargement of a nonconforming business so as to be different
in kind in its effect on the neighborhood. " Finally, in
Bridgewater v. - Chuckran, 351 Mass. 20, we said, at 23:
"Recent cases have emphasized-three tests for determining whether
current use of property fits within the exemption granted to
nonconforming uses. (1) Whether the use reflects the. 'nature• and
purpose' of the use prevailing when the zoning by-law took
effect. . . . [citations omitted. ] (2) Whether there is a
difference in the quality or character, as well as the degree, of
use, . . . [citations omitted. ] (3) Whether the current use is
'different in kind in its effect on the neighborhood. '" .
[citation omitted. ]
It is ,inevitable that the development and application of a rule
of law governing nonconforming uses on a case by case basis, with
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' MA:tiMass. Supreme Judicial / Appeals Courts {
the result depending almost entirely on the particular facts of
each case, should produce two separate and distinct lines of
cases, one holding that the disputed use, -often despite some
changes therein after the adoption or amendment of the zoning
ordinance or by-law, is protected as a lawful nonconforming use,
and the other holding that the use, although lawful when the
zoning ordinance or by-law was adopted or amended, has so changed
that it is no longer protected. The following are some of our
decisions most frequently cited for each conclusion.
(a) Cases Upholding the Nonconforming Use. In Cochran v.
Roemer, 287 Mass. 500, 507-508, a small fuel business
"conducted by an old system . . . at retail with comparatively
few sales to other dealers, " was changed to "a very large
business [conducted] by the most modern appliances for the most
part by sales to the ultimate consumer
Page 654
but to. a considerable extent to other dealers for resale." In
Medford v. Marinucci Bros. & Co. Inc. 344 Mass. 50, 51-53,
the disputed use consisted of the laying of a new fifty-car side
track parallel to a railroad's existing and allegedly
nonconforming tracks, and the use of the siding for the unloading
of large quantities of fill transported from New Hampshire for
use in highway construction in this Commonwealth. In Morin v.
Board of Appeals of Leominster, 352 Mass. 620, a nonconforming
one-man printing business was conducted in a barn during the
summer months and moved into a dwelling house on the same lot
during the winter month*. The use of the barn for the '
nonconforming printing business the year round, after insulation
and interior improvements of the building, was upheld. In
Crawford v. Building Inspector of Barnstable, 356 Mass. 174,
we held a part of a disputed use lawful and a part unlawful. We
upheld the alteration of a nonconforming small hotel building by
enclosing an open porch thereby increasing the ground floor area
of the building by no more than three to four per cent. The use
held unlawful is described below. In McAleer v. Board of
Appeals of Barnstable, 361 Mass. 317, 322-324, we held that a
lawful nonconforming use of property in a "Residence district
for the operation of an inn during the summer months permitted ,
the inn to be operated during the entire year.
(b) Cases Limiting the Nonconforming Use. In Lexington V.
Bean, 272 Mass. 547, 553, we held that the use of a building by
the defendant "for the commercial purpose of repairing motor
vehicles for hire is 'substantially different' from a use of it '
by a person residing on the premises for the purpose of repairing .
motor vehicles belonging..to him as incidental to his .trucking._and..
express business." In Marblehead v. Rosenthal, .316 Mass. 124,
we held that a lawful nonconforming use consisting of the
operation, on a small scale, of the business of a tailor and
furrier in one store, with some hand sponging and cleaning of
clothes by the members of a family and two employees, did not
permit its change and expansion to
Page 655
three stores with complete mechanical equipment for a dry
cleaning establishment employing sixteen or seventeen people,
only one of whom was a tailor. In Everpure Ice Mfg. Co. Inc. v.
Board of Appeals of Lawrence, 324 Mass. 433, we held .that a f
fuel oil business was not so intrinsically and inherently related
to an existing nonconforming ice manufacturing business as to 'be
fairly construed as included within the latter use. Lynn v.
Deam, 324 Mass. 607, involved a change in the use of a building
from a dance hall to a restaurant or store in which food was
served or sold. Seekonk v. Anthony, 339 Mass. 49, involved a
change from "a makeshift set of arrangements for furnishing to
dump trucks in one place all the ingredients of concrete" to "a
modern plant using more elaborate fixed facilities for use in
connection with more complicated vehicles . . . [and to] a
P
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MA- .Mass. Supreme Judicial / Appeals Courts
substantial supply terminal for cement mixer trucks." We held
this to be more than "a permitted increase in the volume of
business done in an existing plant, " and that it amounted to a
"change in and enlargement of the plant which made it 'different
in kind in its effect upon the neighborhood. '" Hinves v.
Commissioner of Pub. Works of Fall River, 342 Mass. 54,
involved the attempted enlargement of a nonconforming grocery
store business by the addition of a commercial catering service
involving the cooking of food In Massachusetts Broken Stone
Co. v. Weston, 346 Mass. 657, where the nonconforming use
included the sale of crushed stone produced entirely from a
quarry on the premises, we held, at 662-663, "that the
importation of stone to be processed and sold on the premises as
stone would be a change in use, and the petitioner has no right "
thereto. " In Brady v. Board of Appeals of Westport,
348 Mass. 515, we held that a nonconforming use consisting of four or five
boats associated with the premises moored or tied to a twelve -
foot pier could not be changed to a new structure consisting of
two piers, one extending out into the water a distance of eighty .
feet and the other a distance of ninety feet, a barge measuring
twenty-eight by ninety feet in size permanently affixed to
Page 656
the shore, and commercial boat repair and service facilities. In .
Building Inspector of Malden v. Werlin Realty, Inc.
349 Mass. 623, we held that the use of premises for the manufacture and
incidental storage of oxygen could not be justified on the basis
of• a prior lawful nonconforming use of the premises for the
storage of ice cream cones and straws. , In Bridgewater v.
Chuckran, 351 Mass. 20, we held that the use of premises as a
ready mixed concrete manufactory and center for supply to others
could not be justified on the basis of the prior lawful
nonconforming use of the premises as a house builder's main yard
in which the mixing of concrete was merely incidental to his
general business. In Kreger v. Public Bldgs. Commr. of
Newton, 353 Mass. 622, there was a lawful nonconforming use of
premises by the Luther Paul Co. (Paul) for the storage and sale
of fuel oil and service to consumer customers. The use involved
three fuel storage tanks having a total effective capacity of
56, 000 gallons and an average monthly sale of less than 200, 000
gallons. Paul then made an arrangement with another company,
Northeast Petroleum Company (Northeast) which sold fuel oil to a ,
number of retail distributors whereby Northeast would supply oil
at Paul's tanks for delivery to the tank trucks of Paul and of
Northeast's customers. Without increasing the tank storage
capacity, the total monthly distribution from Paul's tanks
increased six or seven times to as much as 1.4 million gallons in
one month, thus increasing the frequency .with which. the tanks had
to be refilled. Almost ninety per cent of the oil distributed
from the tanks thereafter was to Northeast's customers. We held,
at 627: "For zoning purposes. there was' a change in the kind of
use. . . . The new wholesale use predominates. . . . We need not
decide whether every addition to a retail operation of some
wholesale business would overload a nonconforming or other legal
use. Here the businesses are different in an aspect with which
the use regulations in the zoning ordinance are directly
concerned, and there has resulted a significant increase in use.
It is beside the point
Page 657
that under our many cases this [increase in volume of business] _
would have been protected had it resulted merely from the growth
of Paul's retail business without expansion of plant. The
increased activity with the change to a wholesale business shows
that the change has been substantive. " Cullen v. Building
Inspector of No. Attleborough, 353 Mass. 671, 676, involved an
increase in milk production coupled with a tenfold increase in
the dairy herd and other "extensive activities" which we held
"compel the conclusion that there was a change" and that " [f]or
purposes of the zoning laws the aggregate of all these operations
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MA:NMass. Supreme Judicial / Appeals Courts
amounts to a difference in quality rather than in degree alone. "
Ih Jasper v. Michael A. Dolan, Inc. 355 Mass. 17., at 24, we
said: "The present case involves the addition of a product (hard
liquor) sold by a store previously licensed to sell only beer and
wine. .We are of opinion that this addition does not satisfy the
first and second tests laid down in Bridgewater v. Chuckran
[35] Mass. 20, 23) . In other words, the sale of hard liquor
(1) does not reflect the nature and purpose of the preexisting
nonconforming use and (2) differs in the quality or character, as
well as the degree, from the prior use. . . . Similarly, the
operation of a separately conducted all-alcoholic package store
is substantially different from the sale of beer and wine in
connection with a food store. Accordingly we hold that the sale
of all-alcoholic beverages at the . . . premises constitutes a
new use and is in violation of the zoning ordinance. " In
Crawford v. Building Inspector of Barnstable, 356 Mass. 174,
the owners of a small hotel or club had a lawful non-conforming
use which included the beaching or mooring of boats in the bay on
which the hotel property fronted. They then built a pier eight
feet wide extending out into the water a distance of 285 feet,
with a deck fifteen by forty-eight feet in size forming a "T" at
the outer end of the pier. The pier was for commercial, not
residential purposes. In rejecting the contention that the pier
was a lawful continuation of the nonconforming use, we said, at
179-180: "The pier . . . makes a use of the water side
Page 658
of the premises which is different in quality, character and kind
as well as degree from that which was made of it before." [fn4]
Having noted the principal cases comprising the two lines of
decisions on the status of nonconforming uses, particularly with
reference to changes or extension in such uses after the adoption
of zoning regulations, we must apply the results of those
decisions to this case. We shall do so separately as to each of
the two parcels of land and the three buildings.
1. Parcel 1. This is the parcel on which the building
presently used for the manufacture and sale of candles and other
merchandise is located. The building, having one story and a
basement, has been in existence in its present location and size
since an undetermined date, but prior to 1950. The individuals
who formerly owned this parcel (the Johnson family) , and the
Candle Co. which they caused to be formed in 1946, used most of
the first floor of the building for the manufacture and sale, at
wholesale and retail, of candles and accessories, and used a
small "L" at the front of the building as the administrative
office for that business. They used part of the basement for
storage and rented part of it out to others for storage. These
uses continued to 1954.
In 1954 a new group of persons (the Stein family) became
stockholders of the Candle Co. The Candle Co. continued to use
the building for the same general purposes as before 1954 except
for a substantial increase in
Page 659
the volume of the business which was conducted on or from the
premises. The Stein family added to the line of merchandise other
than candles. They„increased the number of wholesale accounts, , ` -
thus increasing the volume of candles manufactured on the
premises and the volume of merchandise purchased for resale, and
they also increased the volume of merchandise shipped out to
wholesalers both by parcel post and by truck. The candle
manufacturing operations occasionally extended beyond the ti 4
daylight hours into the evening. The retail sale business was
operated on the premises from the spring to early December of
each year, and in the summer months it was operated seven days a
week from morning until nine or ten in the evening. ,
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In 1957 the Realty Trust purchased Parcel 1, and the
interveners Blank and Perkins became the sole stockholders and
officers of the Candle Co. Under their management the Candle Co.
increased the variety of the merchandise which it sold both at
wholesale and retail, adding a variety of "gift shop" and other
noncandle related items. It also sold at wholesale a greater
variety of candles not of its own manufacture. There has been a
large increase in traffic on the street where the Candle Co. is
located and in the number of persons stopping at its retail store ~
which is now open seven days a week throughout the year. Although-
the Company provides forty off-street parking places, the number
is not adequate on certain occasions. Commercial buses bring
groups to the store and occasionally the buses park there with
their motors running for more than a half hour.
The Realty Trust purchased Parcel 2 in 1962. Thereafter two
types of activity were moved out of the building on Parcel 1. The
administrative office for the business was moved from the "L" of
that building to the second floor of the Schoolhouse building on
Parcel 2, and the shipping of merchandise to wholesale customers
was moved to the Warehouse building on Parcel 2.
The judge found that the present use being made of Parcel 1 and
the building thereon "represents a continuation
Page 660
of the use prevailing at the time of adoption of the .
[zoning] By-Law; that . . . such use was lawful at the time of
said adoption; [and] that there is a difference in degree of such
use, but not in the quality or character thereof." We agree with
those conclusions. There was no error in that part of the order
which denied a writ of mandamus as to Parcel 1.
2. Parcel 2. There are two buildings located on this parcel,
one being identified as the "Schoolhouse" and the other as the
"Warehouse." This parcel was owned .by members of a family named .
Phinney from at least 1912 until 1962 when it was sold to the
Realty Trust. On the latter date there was a third small wooden
building, commonly called the "Shack" located on the parcel but
it has since been torn down and is not involved in this decision.
The relevant descriptions and uses of the Schoolhouse and the
Warehouse follow.
(a) The Schoolhouse. This is a two-story wooden building J
resembling a dwelling house. During the 1950's the first floor
was used for miscellaneous storage in connection with a business
conducted by the Phinney family in the Warehouse; and this floor
is still used for miscellaneous' storage.
From 1953 to 1959, and perhaps during other years in the
1950's, the second floor was occupied as living quarters by two
employees of the Candle Co. These two persons also engaged in
what is sometimes referred to as "Home industry" in their living
quarters, using their spare time to make costume jewelry, rubber
stamps and wooden foot stools and to do printing of business
cards and notices on a three inch by five inch press. There is no
evidence which would permit a finding of the volume of the
production of this "Home industry."
Sometime after the .Realty Trust purchased Parcel 2, the second '
floor of the Schoolhouse was converted into administrative
offices of the Candle Co. business, and now contains a variety of
office and business equipment. It is no longer used as a
residence by anyone. There is no evidence or finding by the judge
of any prior use of the
Page 661 1
second floor which can serve as the basis for a claim that the
present use is permitted as the continuation of a lawful
nonconforming use.
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MA:Irlass. Supreme. Judicial / Appeals Courts
We hold with reference to. the Schoolhouse building (a) that the
present use of the first floor thereof for miscellaneous storage
is lawful as a continuation of a nonconforming use; and (b) that
the present use of the second floor thereof for the
administrative office of the business conducted by the Candle Co.
is not entitled to any protection as a nonconforming use and it
violates the zoning by-law of the town.
(b) The Warehouse, The Warehouse is a corrugated metal
building of one story, sixty feet by one hundred feet in size,
erected in 1912. It was thereafter used by members of the Phinney
family for a variety of purposes including the following: the
storage and packaging of coal and wood for sale and delivery to
customers, the storage of ice boxes (not electric refrigerators)
for sale, the storage of coal trucks, oil trucks, pumps and drums
used in a retail fuel oil business, the winter storage of fishing
and marine paraphernalia, the rental of space for the storage of
vehicles, including trucks; and the storage of second-hand
furniture. Some aspects of the coal and fuel oil business were
conducted in portions of the Warehouse from about 1920 until the
Phinney family sold this business in 1959. The furniture storage
occurred in about 1960 and lasted for about two years. The
storage of ice boxes occurred between 1930 and 1950. The storage
of fishing gear occurred during the winters from about 1938 or
1939 until 1959. The evidence does not permit a finding of more
exact dates for the several uses of the Warehouse than those
given above. Neither does it permit more detailed findings of the
.extent to which the Warehouse was used for the several purposes
described above or the areas or parts of that building used
therefor.
After the Warehouse was purchased by`the Realty- Trust in 1962,
it was used increasingly by the Candle Co. as a place for
receiving, storing, packaging and shipping
Page 662
items involved in the wholesale aspect of its business. The
Candle Co. in effect moved that part of its total business
operations from its former location in the building on Parcel 1 "
to the Warehouse building on Parcel 2. To adapt the Warehouse-for
this move, a new floor, two toilets, heating and lighting
equipment, shelving, bins and shipping doors were installed, and
later the building was also insulated and sheathed.
The Candle Co. 's gross sales for the year 1960 were $111, 027,
and they increased each year thereafter. Its use of the Warehouse
after 1962 permitted the .expansion..of .its wholesale operations...
At the time of trial of this case in 1968 the Candle Co. had
fifty-two employees. Its gross sales for 1967 amounted to
$569, 512, consisting of $57,740 received from sales "made on the 1
premises, " and $511,772 received from sales "made off the
premises. " All of the merchandise sold "off the premises" was
processed in the Warehouse. 'This included ,the receiving, sorting,
checking, placing in stock or taking from stock, counting, r
wrapping, packaging, labeling, boxing and addressing of
merchandise for shipment to about 4,000 to 5, 000 customers
throughout the country. The merchandise was delivered to and
• shipped from the Warehouse principally by trucks or trailer
trucks. In 1968 an averaae of three or four trucks or trailer
trucks drove to and from the premises each day for this purpose.
No manufacturing or retail sales operations have been conducted
at the Warehouse.
The judge found and ruled "that the current use of . . . [the
Warehouse] is different in quality and character from that use
prevailing before 1957, the difference being that what was a
warehouse and distribution facility used for the purpose of
serving customers within physical reach of one day delivery by
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MA? Mass. Supreme Judicial / Appeals Courts ,
truck is now such a facility for serving customers nationwide.
We reach the same result but not for the sole reason stated by
the judge.
We hold that the present use of the Warehouse is barred as an
alleged nonconforming use when tested by
Page 663
the standards suggested by our opinion in Bridgewater v.
Chuckran, 351 Mass. 20, 23. The first test is whether the
present use reflects the nature and use prevailing when the
zoning by-law took effect. We hold that it does not. The second
test is whether there is a difference in the quality or
character, as well as the degree, of the present use. We hold
that there is. The third test is whether the current use is
different in kind in its effect on the neighborhood. There is no
question that the combined use of the two parcels and the three
buildings for the conduct of a single business enterprise is
different in kind in its effect on the neighborhood by reason of
the increased traffic. However, it is difficult to determine to
what extent this is attributable to the use of Parcel 2, except
for the effect of the truck and trailer-truck deliveries and
shipments.
Our decision that the present use of the Warehouse,,is not a
protected nonconforming use is based on a consideration of the
combined effect of all of the differences between that use and
the use which existed at the time of the 1956 amendment to the
zoning by-law, and it is not limited to the narrow ground stated
by the judge, viz. , that the area to which merchandise is
distributed from the Warehouse is now much larger than that
serviced in 1956. The Warehouse building which formerly housed a
rather dormant operation involving primarily what might be termed
"dead" storage has now become a veritable beehive of activity
essential to the operation of the Candle Co. 's wholesale business
described above. What the Phinney family did in the Warehouse
prior to the time the property became classified for residential
purposes by the zoning by-law cannot and does not authorize or
protect the use now being made of that building by the Candle Co.
Of the many cases previously decided by this court on this
subject and which are listed above, those involving facts which ,
more nearly resemble those of the present case are Marblehead
v. Rosenthal, 316 Mass. 124, and Kreger v. Public Bldgs.
Commr. of Newton, 353 Mass. 622, but we do not rely solely on
these two cases. a
Page 664
3. Advertising Signs.. The permissibility of four signs
advertising the business of the Candle Co. was put in issue in
the trial in the Superior Court, and the judge made findings and
rulings thereon. 'Two of the signs were located on Parcel 1, and
the other two were directional signs maintained on premises other
than Parcels 1 and 2. None of the briefs includes any discussion
or argument on the issue of the permissibility of the signs. We
therefore treat this issue .as waived by all parties. S.J.C. Rule
1:13., 351 Mass. 738.
4. Laches. At the trial in the Superior Court the Realty
Trust and the Candle Co. claimed. that the petitioners were barred
by reason of laches in seeking relief and the judge found against
them thereon. While there is an argument against this claim in
the brief of the original petitioners,' the issue is not argued in
the brief of the parties who raised it. They are therefore deemed
to have waived it. S.J.C. Rule 1:13, 351 Mass. 738. In any event,
for reasons stated in McAleer v. Board of Appeals of
Barnstable, 361 Mass. 317, 322, laches may not be a defence to
this type of petition.
5. Modification of Order for Judgment. The judge of the
Date Printed: January 14, 1999 1:47:00 PM
" MA:I Mass. Supreme Judicial / Appeals Courts
Superior Court entered an order for judgment in effect denying
the petition for a writ of mandamus as to Parcel 1 and ordering
issuance of the writ as to Parcel 2. On the basis of what we have l
said above, the only change required in that order is that relief
should have been denied as to the first floor of the Schoolhouse
building on Parcel 2. Accordingly the order for judgment is to be
modified in that respect with the result that as modified it will
order as follows:
(a) The petition for a writ of mandamus is denied as to Parcel
1, and as to the first floor of the Schoolhouse building on
Parcel 2; and
(b)' A writ of mandamus shall issue against the building
inspector ordering him to take whatever action is required under
§ Q (5) of the zoning by-law or under any other provision of law
for the enforcement of the zoning by-law as to the Warehouse
building and the second floor
Page 665
of the Schoolhouse building, both located on Parcel 2: The order
as to these two buildings shall not contain the provision for a
stay of the issuance of the writ which was contained in the
original order entered in the Superior Court.
So ordered.
[fnl] As to Parcel 2 the order provided that "issuance of writ to
be stayed, however, for such length of time not exceeding ninety
days from entry hereof as-may be necessary for application to the
Zoning Board of Appeals for such relief as such Board may see fit
to grant. " The order was entered on August 28, 1968. On January
15, 1969, the Realty Trust applied to the Board of Appeals for a
permit authorizing them to use Parcel 2 for the purposes which
the judge had held were not authorized by the zoning by-law. The
board denied the petition on July 8, 1969. On motion of the
petitioners the judge, on June 22, 1971, ordered the board's
decision incorporated in the exhibits to. be filed with this
court. There is no appeal from the board's decision before us.
[fn2] Ordinarily this claim of justification would require a
determination of the nature and extent of any lawful
nonconforming use, in existence when the zoning by-law was first
adopted in 1949, but for reasons not entirely clear from the r
record the judge and most of the parties seem to have
concentrated on the situation existing. at the time of the
comprehensive by-law revision in 1956. The judge stated in his
written decision: "It was stated in open court by counsel for the
petitioners that no evidence relating. to the years before 1957
was offered or claimed to show any violation of Zoning By-laws
and, therefore, the Court confines itself to a consideration of
the violations, if any, of the Zoning By-laws as adopted and
applicable to the whole town after 1956. "
[fn3] This language should be considered. subject to the following '
cautions about the zoning statutes peculiar to Boston which were
involved in Cochran v. Roemer, supra. In Inspector of Bldgs.
of Burlington v. Murphy, 320 Mass. 207, at 209, we said: "But
that case was decided under the zoning statutes applicable to the
city of Boston, which have always been more liberal toward
nonconforming uses than the general statutes applicable
elsewhere." This caution was repeated in Seekonk v. Anthony,
339 Mass. 49, 54, and in Kreger v. Public Bldgs. Commr. of
` Newton, 353 Mass. 622, 626.
[fn4] There are additional cases limiting the extension of
nonconforming uses which are frequently cited but which have no
application to the present case because they involve removal of
loam or gravel for sale, or other earth removal operations. See
Date Printed: January 14, 1999 1:47:00 PM
MAS Mass. Supreme Judicial / Appeals Courts
Burlington v. Dunn, 318 Mass. 216; Billerica v. Quinn,
320 Mass. 687; Wayland v. Lee, 325 Mass. 637. Other cases,
frequently cited but not applicable here, hold that the existence
of a lawful nonconforming use does not permit the erection of
additional buildings for the extension or enlargement of that
use. See Wilbur v. Newton, 302 Mass. 38, 43; inspector of
Bldgs. of Burlington v. Murphy, 320 Mass. 207, 210; Connors
v. Burlington, 325 Mass. 494; Planning Bd. of Reading v.
Board of Appeals of Reading, 333 Mass. 657; Chilson v.
Zoning Bd. of Appeal of Attleboro, 344 Mass. 406; Garfield v.
Board of Appeals of Rockport, 356 Mass. 37. See also Simeone
Stone Corp. v. Board of Appeals of Bourne, 345 Mass. 188,
192-193.
Date Printed: January 14, 1999 1:47:00 PM
Town of Baanstabl® ,:`��!1 f
Zoning Board of AppeAs f
ntienerrsst.i� planning Department ...._�-
059. A�� ' 230 South Straet,Hyannis, Massarhusetts 02601
(508)790.6225 Fax(508)790-6288 j
January 22, 1999
Robert Smith,Town Attorney r. ,. ) f
Ruth Well,Assistant Town Attorney (�/ <
" own of Barnstable,Attorney's Office
230 South Street,
Hyannis,Massachusetts 02601 —
Reference: Appeal Number 1998.138-Chatham Real Properties, Inc,
Special Permit pursuant to Section 4-4.5(1;Change of a Nonconforming Use to Another
Nonconforming Use
Dear Mr.Smith and Ms.Well:
At the January 13, 1999 hearing of the Zoning Board of Appeals,the Board heard continued testimony of
the above referenced appeal(continued from the December 16, 1998 hearing), During the Board's
deliberation, questions were raised concerning the legal pre-existing nonconforming use of this site.
The applicant purports that warehouse storage is the legal pro-existing nonconforming use of the p;oparty
and Is seeking to change that use to that of a 7 unit condominium residential use. The Board questioned
If the legal pre-existing nonconforming use on this site was that of a candle factory, and the storage use
was accessory to the candle factory, then when the candle factory use stopped, can the accessory use of
storage now be considered the legal pre-existing nonconforming use? No relief was ever granted to
change from one pre-existing nonconforming use to another nonconforming use. If the storage on site is
non-candle related, Is that a different use altogether or Is It now the prinlary use and If so, is It a legal pre-
existing nonconforming use?
Further,if storage Is now considered the legal pre-existing nonconforming use, is there any differentiation
between personal and commercial storage?
1 have attached a copy ofthe meeting minutes of both the December 18, 1998 and the January 13, 1999
hearings along with Other materials related to the Issue for your review,
On behalf of the Board Members I thank you for your assistance. This appeal has been continued to
March 17, 1999. Materials for that meeting wlil be transmitted to the Board Members on March 11, 1999,
Should you need additional Information please contact Debbie Lavoie or Alan Twarog at extension 4785,
AeRe ,cifully,
t Glynn, Ch ' an
ilia•ta!•kiloro•L0922®a.doo
Attachments., MeeOng Minutes
Letters Io astebt sh legal pte-existing nanconroemir>Q use
Application
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