In another zoning case that supports the expansion of a pre-existing, nonconforming use, the SJC issued its decision in Shirley Wayside Ltd. P’ship v. Bd. of Appeals of Shirley, SJC-10869 (Feb. 7, 2012), an action that was commenced in the Land Court in late 2005.
In this case, Plaintiff Shirley Wayside Limited Partnership (Shirley Wayside), owner of a mobile home park, wanted to expand the number of units on its almost twenty-acre lot from sixty-five (65) to seventy-nine (79) mobile home units, and replace one of the existing but abandoned mobile home units on the property. The new units would be placed at the rear of the lot away from the main public road and in an area screened by trees.
The mobile home park was established in the 1950s. The lot spreads across two zoning districts (RR and R3). The minimum lot size (for single family and many other uses) within the RR zone is 80,000 SF, and in the R3 zone the minimum lot size is 15,000 SF.
In 1985, the Town amended the Zoning Bylaw to prohibit mobile home parks in all zoning districts, including the RR and R3 zones. Thus, the existing mobile home park is considered a lawful, pre-existing, nonconforming use. Any expansion requires a special permit, provided it meets the requirements under the Shirley Zoning Bylaw for such an expansion.
Despite the prohibition for mobile home parks under the Zoning Bylaw, Shirley Board of Health (BOH) regulates the existing and remaining mobile home parks within the town. BOH regulations require 5,000 SF for each mobile home unit, on a lot that has minimum dimensions of fifty (50) by one-hundred (100) feet. The units must be set back at least twenty (20) feet from the lot boundaries. The existing units do not comply with these dimensional requirements to the extent that they pre-date the BOH regulations that were enacted in 1960.
Shirley Wayside applied for a special permit for its expansion plans. Under the Shirley Zoning Bylaw, an expansion of a pre-existing, nonconforming use is permitted if three conditions are satisfied:
(1) the expansion of the structure or use cannot exceed 25% of its area on the lot;
(2) the ZBA must find that the extension, alteration, reconstruction or repair is not substantially more detrimental to the neighborhood than the existing nonconforming use or structure; and
(3) the expansion must be physically contained within the boundaries of the lot as such boundaries existed and such nonconforming use/structure was situated on the date it became nonconforming.
The Shirley Zoning Board of Appeals (ZBA) denied the special permit on several grounds, and found that Shirley Wayside had not shown that the expansion would not be substantially more detrimental to the neighborhood than the existing mobile home park. It based its decision, in part, on the fact that the expansion was too close to the 25% (though not over) requirement.
The Land Court overturned the ZBA’s decision and ordered that a special permit be issued. The Appeals Court reversed, and found that the ZBA acted within its discretion regarding concerns about density issues. See Shirley Wayside Ltd. P’ship v. Bd. of Appeals of Shirley, 78 Mass. App. Ct. 19 (2010). The SJC granted further appellate review, ultimately holding that the expansion complied with the zoning bylaw at issue (minimum lot size), and thus affirmed the Land Court’s decision.
In its review of the case, the SJC focused primarily on two issues. First, whether the density concerns raised by the ZBA and affirmed by the Appeals Court were sufficient to deny the special permit, and second, whether the traffic issue now being raised for the first time on appeal by the ZBA was a legitimate reason to deny the special permit.
As to the density concerns, the SJC found that notwithstanding the parties’ dispute about the application of Cox v. Bd. of Appeals of Carver, 42 Mass. App. Ct. 422 (1997) (expansion of mobile home park), to the instant case, a plain reading of the Shirley Zoning Bylaw indicates that the minimum lot size requirements are applied to the entire mobile home park, not to each individual mobile home unit. To reach this conclusion, the SJC classified a mobile home park as an “other use”, although a prohibited one. In this regard, the twenty acre lot size is clearly sufficient in both zoning districts, even after the expansion. The SJC refused to place any weight on BOH dimensional regulations because they are not a suitable substitute for compliance with zoning bylaws.
In an interesting yet equitable approach, the SJC then went on to analyze whether the expansion would satisfy the setback requirements, even though the issue was not litigated below. One of the new units would be located twenty-two feet from an adjoining lot, thereby satisfying the BOH regulations, but possibly violating the Zoning Bylaw’s 30-foot setback requirement for the R3 zone, depending on whether this portion of the lot was classified as side, front or rear yard. Acknowledging that it could remand the case back to the Land Court on this issue, the SJC decided instead (on equitable grounds) to avoid the remand to the extent that both parties had been acting under the assumption that the BOH setback requirements were the salient ones. The SJC noted that to possibly apply the more stringent zoning setback requirements at this stage would be unfair to Shirley Wayside. A lengthy analysis followed that even if the expansion ultimately violates the Zoning Bylaw setback requirements, the SJC would decline to apply the bylaw retroactively in this case given these circumstances.
In the end, the SJC, like the Land Court (Long, J.), did not give any credit to the ZBA’s generalized concerns about density, citing a lack of demonstrable supporting evidence within the record. To the contrary, as pointed out by the SJC, the expansion will occur at the rear of a twenty-acre lot and screened by trees, and to decide otherwise would be arbitrary and capricious.
As for concerns about increased traffic, the SJC also discredited the ZBA’s arguments and its misplaced reliance on Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973) (“[i]t is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling”). Only Shirley Wayside presented expert testimony about traffic at trial, and four other witnesses testified about their personal experiences with traffic in the area; none of them encountered traffic problems near or within the mobile home park. The Land Court judge found that traffic impacts would be minimal and there was no evidence to the contrary presented by the ZBA.
In sum, the case contains some important reminders:
(1) A zoning board of appeals or other special perming granting authority must have a credible evidentiary basis for the findings in their decision with conclusions that rationally flow from those findings. The lack of credible evidence to support the findings and conclusions of a zoning board decision makes the decision unsustainable;
(2) Mere increases in traffic from a proposed project are not in themselves a sufficient basis to deny a permit application but rather, there must be evidence that an increase in traffic will cause impacts like congestion, delay and safety concerns that are more than de minimis; and
(3) Where, as here, a zoning bylaw authorizes the expansion of a preexisting nonconforming use, a municipality unequivocally rejects the concept that nonconforming uses and structures must, over time, fade away or remain static.
Written by Jeffrey T. Angley, Esq., and Kristen M. Ploetz, Blog Editor
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.