Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Almeida v. Arruda

Appeals Court of Massachusetts, Bristol

March 18, 2016

Jillian Almeida & others [1]
v.
Antonio Arruda & others. [2]

         Argued January 12, 2016

          Civil action commenced in the Superior Court Department on October 18, 2011.

         The case was heard by Robert J. Kane, J.

          Judgment affirmed.

          Marc R. Deshaies for the plaintiffs.

          Walter Fraze, Jr., for Antonio Arruda & another.

         Present: Kafker, C.J., Cohen, & Blake, JJ.

          OPINION

          [46 N.E.3d 1038] Kafker, C.J.

          This appeal arises from a dispute over the addition of beer and wine sales at a convenience store in the town of Westport. The store, owned by Antonio and Darlene Arruda (collectively, Arrudas) and located on land that is currently zoned as residential, operates as a lawful, preexisting nonconforming use pursuant to G. L. c. 40A, § 6. The Arrudas sought a finding by the zoning board of appeals of Westport (board) allowing the sale of beer and wine at the store. The board voted unanimously in favor of the Arrudas on the ground that the addition of beer and wine sales to the store's preexisting nonconforming use is not substantially more detrimental to the neighborhood. The plaintiffs,

Page 242

abutters to the store, appealed pursuant to G. L. c. 40A, § 17. After a bench trial, a Superior Court judge affirmed the board's decision, finding that the sale of beer and wine was neither a " substantial change" in use nor a " detriment to the neighborhood." Judgment entered and the plaintiffs appealed. We affirm.

          Background.

          The convenience store is located on land that is currently zoned for residential use. The Arrudas purchased the store in 2005, at which time it presumably was operating as a lawful nonconforming use under G. L. c. 40A, § 6.[3] The store was within commonly owned commercial space that also contained a beauty shop and an insurance company. In 2006, the Arrudas sought permission from the board to enlarge the convenience store by encapsulating the space then reserved for the beauty shop and the insurance company. The Arrudas also sought permission to sell beer and wine at the store. After a public hearing, the board granted permission for the store's expansion but denied permission to sell beer and wine. Apparently no one appealed the board's decision.

         In September, 2011, the Arrudas leased the store to Lino Rego while maintaining ownership of the property. The Arrudas again petitioned the board to allow the sale of beer and wine at the store. After a public hearing, the board voted in favor of the Arrudas, finding that " the addition of beer and wine sales to the pre-existing non-conforming ... use list for this property is not substantially more detrimental to the neighborhood."

         Pursuant to G. L. c. 40A, § 17, the plaintiffs filed a complaint in Superior Court seeking to reverse the board's decision. The judge determined that " the proposed sale of beer and wine fails to constitute a substantial change in use, and fails to constitute a detriment to the neighborhood." In finding no substantial change in use, the judge noted that the sale of beer and wine would not predominate but instead would " integrate into the current operations of the store," occur in the same space in which other groceries were sold, and occupy [46 N.E.3d 1039] only about twelve percent of the store's space. In finding no detriment to the neighborhood, the judge noted that traffic concerns ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.