Agenda - Planning Commission - 12/04/2014

Home

October 25, 2014 I Volume 8 I Issue 20 Zoning Bulletin Massachusetts (the "City"). The Facility was built in 1968. It was a dimensionally conforming commercial structure situated on a 5.5- acre conforming lot in a residential zone. Use of the Facility as a nursing home predated the adoption of the City's zoning ordinance, and was therefore a lawful preexisting nonconforming use. Port and Whittier planned to replace the old structure of the Facil- ity with a modernized 121-bed facility that would meet the dimen- sional requirements of the current zoning ordinance (the "Project"). The City's zoning board of appeals (the "Board") issued a special permit that authorized Port and Whittier to proceed with the Project. Abutting property owners, Cynthia Welch-Philippino ("Philip- pino") and her husband (collectively, the "Philippinos") appealed the Boards' decision. They pointed to Massachusetts statutory law governing nonconforming uses and structures. Massachusetts Gen- eral Laws Chapter 40A, § 6 provides: Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence . . . but shall ap- ply to any change or substantial extension of such use, . . . to any reconstruction, extension or structural change of such structure and to any alteration of a structure . . . to provide for its use for a substan- tially different purpose or for the same purpose in a substantially dif- ferent manner or to a substantially greater extent ....Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted un- less there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood. The Philippinos argued that a conforming structure used for a nonconforming purpose should be treated as a nonconforming structure under the first sentence of G.L. c. 40A, § 6. Consequently, the Philippinos argued, reconstruction and replacement of such a structure would be subject to the provisions of the second sentence of that section, and of the related section of the City's zoning ordinance, Section IX-B.2. The Land Court disagreed. After trial, a Land Court judge concluded that the Project: "(1) [did] not constitute a `change or substantial extension' of the lawful preexisting nonconforming com- mercial use, and (2) [was] therefore permissible as of right under G.L. c. 40A, § 6, and not subject to the more restrictive special permit requirements of the local zoning ordinance." Philippino appealed. On appeal, Philippino argued that the Land Court judge erred when he concluded that the Project did not fall 6 © 2014 Thomson Reuters