Plaintiffs filed their complaint appealing a decision of Defendant Zoning Board of Appeals which upheld a Cease and Desist Order of Defendant Building Commissioner, relative to property located in Woburn, MA. A majority of the property in question is located in the S-1 zoning district and a small portion is located in the R-2 district. The property has two driveways, one located in the S-1 district and one in the R-2 district.
In 1985, an Ordinance was amended that stated: “[n]o access through any lot in a residential district to any land in a non-residential district shall be permitted unless no alternate access is available…” After receiving a letter about the use of the property, the Building Commissioner decided to delete the access drive located in the residential district. Attorney for the plaintiffs claimed that the right to utilize the driveway was grandfathered in, and even if it wasn’t the section of the ordinance was not applicable to the property.
Plaintiffs appealed the Cease and Desist Order to the ZBA. Public hearings were held and the ZBA voted to uphold the order reasoning that even if there had been a pre-existing non-conforming vote, the applicant had abandoned or not used it.
At litigation, both parties agreed that use of the residential ROW is a pre-existing nonconforming use and was therefore permitted, at least initially. The central issue in this case was whether use of the residential ROW has been abandoned or discontinued as a pre-existing nonconforming use for a period of one year.
Testimony at trial revealed a general history of sporadic use of the residential ROW throughout the time period. Also, several tenants of Locus stated that they utilized the residential ROW in their business endeavors. Defendants contend that the ROW laid unused for at least one year, thereby extinguishing the prior nonconforming usage rights per the Ordinance. The court ruled that although there was testimony of some use, there was nothing that demonstrated that it was more likely than not that the residential ROW was being used at least once every two years for the entire period from 1985 until 2010. Therefore, the plaintiffs did not meet their burden of showing the right of way was adequately used.
Even if the lawful nonconforming use was not extinguished by nonuse, the Ordinance provides a second avenue to the same result: abandonment. Abandonment may occur “momentarily, without the lapse of any stated period of time” such that a clear, overt act may, in and of itself, signal one’s abandonment of a nonconforming use. In this instance, Plaintiffs held themselves out to the world as having abandoned their nonconforming use of the residential ROW. In a letter to the Building Commissioner, it was clear and unambiguous that plaintiffs agreed to delete the access drive. Whether or not they genuinely intended to permanently remove the Lowell Street ROW is not relevant here. Therefore, plaintiffs effectively abandoned use of the right of way and the cease and desist order can be upheld on the grounds of either abandonment or nonuse.
Gusativino Realty v Robertson, 2012 WL 2684978 (Mass. Land Ct. 7/5/2012)
The opinion can be accessed at: http://masscases.com/cases/land/2012/2012-11-445324-JUDGMENT.html
