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Leonard1 v. Zoning Board of Appeals of Hanover

Appeals Court of Massachusetts, Plymouth

November 13, 2019

JOSEPH LEONARD [1]
v.
ZONING BOARD OF APPEALS OF HANOVER & others [2] (and two companion cases [3]).

          Heard: May 9, 2019

          Civil actions commenced in the Superior Court Department on December 10, 2014, February 11, 2016, and June 23, 2016. After consolidation, the cases were heard by Angel Kelley Brown, J., on motions for summary judgment.

          Gregory V. Sullivan (Kerstin Peterson also present) for Joseph Leonard & others.

          Lauren C. Galvin for town of Hanover & others.

          Present: Blake, Henry, & McDonough, JJ.

          BLAKE, J.

         Since March 1993, Joseph and Nancy A. Leonard have operated the Hanover Country Florist (florist shop) at 803 Washington Street (locus) in the town of Hanover (town).[4] The florist shop has displayed and sold flowers, pumpkins, and other seasonal plant products from inside and outside of a building in the town's commercial zoning district.[5]The Leonards live in a second-floor apartment in the building. On December 3, 2013, the town's building commissioner notified the Leonards by letter that their outdoor display of goods required a special permit. This was the touchstone to three actions that challenged zoning enforcement orders related to the outdoor displays, as well as separate enforcement orders related to the Leonards' placement of concrete barriers along their property line to separate it from an abutting restaurant property. The three actions were consolidated in the Superior Court. On cross motions for summary judgment, the judge declared that the Leonards' outdoor displays were not lawful prior nonconforming uses and therefore required a special permit. She also found that the placement of concrete barriers was not an "alteration" of the property and did not require a special permit or site plan approval under the town's zoning bylaw (bylaw), and she reversed the cease and desist order relating thereto. We vacate in part and affirm in part.

         Background.

         1. Locus.

         The locus is undersized for the commercial district, but the parties agree it is a lawful nonconforming lot. The building is located roughly in the center of the locus. It is situated next to a restaurant and patrons of the restaurant routinely trespassed on the locus with their vehicles, even causing damage to the building on the locus.

         2. Outdoor displays.

         The parties agree that the bylaw was amended in May 2011 to provide that a business may display or store "goods for sale" outdoors only upon obtaining a special permit from the planning board. When the Leonards began their business at the locus in 1993, § VI.E of the 1993 bylaw provided that "[t]he Commercial District is intended to provide consumer goods and services at retail and to provide goods and services for transients or tourists and to provide non-consumer goods and services." That provision was silent as to outdoor displays or sales. A use specifically allowed in the commercial district pursuant to § VI.E.1.c, however, was "[g]ift shops and places for display or sale of hand-crafts primarily within a structure" (emphasis added).[6] Section VI.E.1.a provided that all uses allowed in the business district were allowed in the commercial district, and § VI.D provided that "[t]he Business District is intended to provide consumer goods and services at retail primarily within a structure" (emphasis added). Section VI.D.1.a specifically allowed a "[r]etail store . . . the principal activity of which shall be the offering of goods or services at retail within the building" (emphasis added) in the business district.

         Section VI.E.2 of the 1993 bylaw delineated uses permitted in the commercial district "upon satisfactory demonstration to the Hanover Planning Board that such uses are appropriate to the specific site and that they will not create a nuisance and not cause a derogation of the intent of these bylaws by virtue of noise, odor, smoke, vibration, traffic generated or unsightliness." Within that section, allowed uses included (1) "[s]alesrooms for bicycles, boats, farm equipment and similar equipment provided the display of goods is primarily within a structure and exterior storage or display is confined to yards which are shielded from public view by fencing and vegetation"; (2) "[c]ontractors' yards and storage yards provided all materials and equipment are stored within a structure or shielded from public view by fencing and vegetation"; and (3) "[a]griculture, horticulture or floriculture." Finally, and most notably, a separate section, § VII.H of the 1993 bylaw provided that "[e]xcept as specifically permitted in this bylaw, outdoor storage or display of any vehicles, boats, building materials, goods for sale and similar articles is not allowed in Business, Commercial and Limited Industrial Districts."[7]

         3. Concrete barriers.

         In March 2014, in an effort to rectify the problems created by patrons of the neighboring restaurant, the Leonards installed along the boundary line between the two properties concrete barriers which were thirty-six inches high and twenty-four inches wide. On March 24, 2014, the fire chief conducted a site inspection of the locus. Thereafter, he issued a notice to the Leonards ordering the removal of all the concrete barriers because they impeded access and created fire-safety risks. The Leonards removed the barriers and replaced them with orange construction barrels tethered together. The town took no action against the placement of the barrels.

         On November 16, 2015, the Leonards replaced the barrels with smaller concrete barriers, twenty-four inches high and twenty-four inches wide. In a joint letter dated November 24, 2015, the building commissioner and the fire chief informed the Leonards that by installing the smaller concrete barriers, they had altered their preexisting nonconforming lot. The letter asserted that the Leonards had violated §§ 4.320 and 4.330 of the bylaw, presumably the 2014 bylaw then in effect, as well as G. L. c. 40A, § 6. Section 4.330 of the 2014 bylaw requires a special permit to alter or change a preexisting nonconforming lot. In addition, the letter asserted that the town's fire department requires an eighteen-foot wide travel lane for emergency access to commercial properties and that the barriers had reduced the fire lane to 15.9 feet at its narrowest point.[8]The letter ordered the Leonards to return the site to its original condition to avoid further enforcement action. On appeal, the zoning board of appeals (board) affirmed the order.

         4. Procedural history.

         On December 10, 2014, the Leonards filed a complaint in the Superior Court (No. 2014-1316A) seeking a declaration, pursuant to G. L. c. 231A, that the outdoor displays of flowers and other plants were a lawful prior nonconforming use in accordance with G. L. c. 40A, § 6, and that no special permit was required for such outdoor displays on the locus. They subsequently amended the complaint to include a claim, pursuant to G. L. c. 40A, § 17, challenging the board's decision that the outdoor displays of flowers and other plants were not a lawful use eligible for "grandfathered" status.

         On or about February 11, 2016, the Leonards commenced an action (No. 2016-0130A), pursuant to G. L. c. 40A, § 17, asserting that the board exceeded its authority by enforcing the order to remove the smaller concrete barriers and seeking a declaration, pursuant to G. L. c. 231A, that the barriers are not an "alteration" of a prior nonconforming lot and no special permit or site plan review was necessary before placing the concrete barriers on the lot. In June 2016, the town filed a verified complaint (No. 2016-0600A) seeking a declaration, pursuant to G. L. c. 231A and G. L. c. 212, § 4, that the concrete barriers and outdoor displays on the locus are in violation of §§ 4, 5, and 7 of the 2014 bylaw and seeking preliminary and permanent injunctions ordering the removal of the concrete barriers and outdoor displays. The motion for a preliminary injunction was denied.

         After the cases were consolidated, they were decided on cross motions for summary judgment. A judgment addressing all three cases was entered on the docket for each case. As to No. 2014-1316A, the judgment declared that the outdoor display of flowers and plants was not a lawful prior nonconforming use and required a special permit, and affirmed the board's decision upholding the order to remove the displays. As to No. 2016-0130A, the judgment declared that the placement of the concrete barriers did not require a special permit or site plan approval, and reversed the board's decision upholding the cease and desist letter regarding the barriers. As to No. 2016-0600A, the judgment (1) declared that the outdoor displays violated the bylaw and permanently enjoined the Leonards from using outdoor displays without a special permit, and (2) declared that the concrete barriers did not violate the bylaw and the Leonards may maintain them as presently located. The parties appealed from the judgment.

         D ...


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