January 12, 2016
action commenced in the Superior Court Department on October
case was heard by Robert J. Kane, J.
R. Deshaies for the plaintiffs.
Fraze, Jr., for Antonio Arruda & another.
Kafker, C.J., Cohen, & Blake, JJ.
N.E.3d 1038] Kafker, C.J.
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,
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.
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. 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.
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."
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 ...