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April 25, 2016 I Volume 10 I Issue 8 Zoning Bulletin <br />Nonconforming Use —Operators of <br />nonconforming use convenience <br />store seek to add sales of beer <br />and wine <br />Abutters argue proposed new sales <br />substantially change use, making use <br />nonconforming and subject to zoning <br />restrictions <br />Citation: Abneida v. Arruda, 89 Mass. App. Ct. 241, 2016 WL 1063135 <br />(2016) <br />MASSACHUSETTS (03/18/16) This case addressed the issue of <br />whether the proposed addition of beer and wine sales at a pre-existing <br />nonconforming convenience store use was such a substantial change in use <br />or substantial extension of use such that the use lost its nonconforming <br />status and became subject to later amendments to the zoning ordinance. <br />The Background/Facts: Antonio and Darlene Arruda (the "Arrudas") <br />owned a convenience store in the town of Westport (the "Town"). The <br />store was located on land zoned as residential. However, the store was in <br />operation prior to the zoning designation, and therefore operated as a law- <br />ful, preexisting nonconforming use pursuant to Massachusetts statutory <br />law, Mass. Gen. L. c. 40A, § 6. <br />Under Massachusetts law, a prior nonconforming use is one that is law- <br />fully being carried on at the time a zoning ordinance or bylaw that prohibits <br />that use is adopted. Pursuant to Mass. Gen. L. c. 40A, § 6, a prior <br />nonconforming use of land is not subject to a later enacted ordinance or <br />bylaw. However, "any change or substantial extension of such [noncon- <br />forming] use" is not protected by statute and is subject to later amendments <br />to an ordinance or bylaw. <br />Additionally, in this case, the Town's zoning bylaw provided that even <br />if a proposed use was found to be a "substantial change" or "substantial <br />extension" of a use, the proposed use could still be permitted if an ad- <br />ditional finding was made that "such change shall not be substantially more <br />detrimental than the existing non-confoinung use to the neighborhood." <br />In 2011, the Arrudas petitioned the Town's zoning board of appeals (the <br />"Board") to allow the sale of beer and wine at the convenience store. The <br />Board voted to allow the beer and wine sales at the store. In so voting, the <br />Board found that "the addition of beer and wine sales to the pre-existing <br />non -conforming. . .use. . .[was] not substantially more detrimental to the <br />neighborhood." <br />Jillian Almeida and others (the "Abutters") owned property abutting the <br />6 © 2016 Thomson Reuters <br />