Agenda - Planning Commission - 06/02/2016

Home

Zoning Bulletin April 25, 2016 I Volume 10 I Issue 8 store. The Abutters appealed the Board's decision. The 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." In finding no substantial change in use, the judge noted that "the sale of beer and wine would not predominate but instead would 'inte- grate into the current operations of the store,' occur in the same space in which other groceries were sold, and occupy only about twelve percent of the store's space." In finding no detriment to the neighborhood, the judge noted that "traffic concerns were related more to the general use and nature of the road on which the store [was] located than to any proposed change in the store's operation, that [the convenience store operator's] background in running a similar store would minimize the risks associated with alcohol sales, and that any littering would not be increased by the sale of beer and wine." The Abutters appealed. They again argued that the addition of beer and wine sales did not reflect the nature and purpose of the prior nonconfoini- ing use, and therefore was not protected under Mass. Gen. L. c. 40A, § 6. They also argued that the sale of beer and wine at the store would be "substantially more detrimental to the neighborhood." DECISION: Judgment of Superior Court affirmed. The Appeals Court of Massachusetts agreed with the Board and the Superior Court. It held that the evidence supported the Superior Court judge's determination that the addition of the sale of beer and wine at the convenience store was neither a "substantial change" in use nor would be "substantially more detrimental to the neighborhood." In so holding, the court explained that a three -prong test is employed to determine whether a proposed use is a change or substantial extension to a nonconforming use such that the nonconforming use becomes subject to later zoning laws. The court said that, in the instant case, the proposed sale of beer and wine at the convenience store did not constitute a change in or substantial extension of use under G.L. c. 40A, § 6 because the evidence showed that all three prongs were met: (1) the proposed use reflected the nature and purpose of the prior use because the additional sale of beer and wine simply added to the stock of groceries and sundries sold at the conve- nience store; (2) the proposed use would not change the quality and character, as well as the degree of use, of the convenience store because the beer and wine sale would not be predominate and would only occupy less than twelve percent of the store's space; and (3) the proposed use was not different in kind in its effect on the neighborhood because traffic factors were present regardless of whether beer and wine was sold, it was "illogi- cal" to conclude that littering would increase because of beer and wine purchases at the store, and there was no evidence that "inebriated individu- als would come to the store and be permitted to purchase beer and wine." Having found the three -prong test satisfied, the court concluded that the proposed sale of beer and wine at the convenience store did not constitute a change in use and was thus protected as a prior nonconforming use under G.L. c. 40A, § 6. ©2016 Thomson Reuters 7