Posted by: Patricia Salkin | April 27, 2016

MA Appeals Court Holds Proposed Sale of Beer and Wine at Store Was Not a Substantial Change in Use and Such Was Protected as Prior Nonconforming Use

The Arrudas purchased a convenience store located in the town of Westport in 2005 on land that currently zoned for residential use. The store operates as a lawful, preexisting nonconforming use. The store was within commonly owned commercial space that also contained a beauty shop and an insurance company. In 2006, the Arrudas sought permission from the Westport zoning board to enlarge the convenience store by encapsulating the space then reserved for the beauty shop and the insurance company. The Arrudas also sought permission to sell beer and wine at the store. After a public hearing, the board granted permission for the store’s expansion but denied permission to sell beer and wine. No one appealed the board’s decision.

In September, 2011, the Arrudas leased the store to Rego while maintaining ownership of the property. The Arrudas again petitioned the zoning board allowing the sale of beer and wine at the store. The board voted unanimously in favor of the Arrudas on the ground that the addition of beer and wine sales to the store’s preexisting nonconforming use was not substantially more detrimental to the neighborhood.

Plaintiffs, abutters to the store, appealed. The lower court affirmed the board’s decision determining that the proposed sale of beer and wine failed to constitute a substantial change in use, and failed to constitute a detriment to the neighborhood. Abutters appealed again. The Appeals Court affirmed, holding that the owners’ proposed sale of beer and wine at store was not a substantial change in use and the convenience store was in operation before the land was zoned for residential use, thus, was protected as prior nonconforming use.

Pursuant to state statute (G.L. c. 40A, § 6), a prior nonconforming use of land is not subject to a later enacted ordinance or by-law. However, “any change or substantial extension of such use” falls outside this protection and therefore subject to later amendments to an ordinance or by-law. The question is whether the proposed use is a change or substantial extension under § 6. If the answer is “no,” then the proposed use is permitted as a protected prior nonconforming use. Moreover, under art. 4.1.2 even if the answer is “yes,” then the proposed use may be permitted if the board makes an additional finding that “such change shall not be substantially more detrimental than the existing non-conforming use to the neighborhood.” The three-prong test to determine whether a proposed use is a change or substantial extension and therefore subject to the prescribed finding requirement is: (1) whether the proposed use reflects the nature and purpose of the prior use, (2) whether there is a difference in the quality or character, as well as the degree, of use, and (3) whether the proposed use is different in kind in its effect on the neighborhood. The burden is on the property owner to prove “the requisite similarity between the proposed use and the original nonconforming use” so as to have it protected as a prior nonconforming use.

Regarding Nature and purpose of prior use, the plaintiffs argued that the addition of beer and wine sales did not reflect the nature and purpose of the prior nonconforming use and therefore was not protected under G.L. c. 40A, § 6. However, the Court noted that the proposed sale of beer and wine “would occur in the same space as where other groceries and sundries are sold” and “those sales would integrate into the current operations of the store.” Here, the proposed use reflects the nature and the purpose of the prior use, thereby meeting the first prong of the test. The prior use consists of a neighborhood convenience store selling groceries and various sundries. The proposed use is the same, just with the addition of beer and wine. The court stated that their decisions did not require that a proposed use be indistinguishable from a prior use in order to be protected as a prior nonconforming use.

Regarding the Quality, character, and degree of use, the court stated the second prong may be satisfied when a proposed use is “reasonably adapted to the prior use,” is not “extraordinary or unreasonable,” and does not “change the fundamental nature of the original enterprise.” Here, the second prong of the test was satisfied. There was nothing to suggest that the proposed sale of beer and wine would change the quality and character, as well as the degree of use, of the convenience store. The beer and wine sales would not predominate but rather would “operate as an adjunct to the sale of groceries and sundries that the store presently sells.” The store’s twelve or thirteen beverage coolers, beer and wine would be placed in no more than five coolers. Furthermore, these products would occupy no more than twelve percent of the store’s space. The additional products simply reflect a small, reasonable expansion in convenience store inventory. Nothing in the record suggests that allocating twelve percent of a convenience store’s space to allow for beer and wine sales is an extraordinary or unreasonable change, nor would doing so change the fundamental nature of the convenience store.

Regarding different in kind in its effect on neighborhood, the plaintiffs pointed to potential increases in traffic and litter, as well as safety concerns related to inebriated customers. The court concluded that the third prong of the test was satisfied and that the sale of beer and wine would not affect the neighborhood in a way that is different in kind as compared to the current store. The court stated that although increased traffic is a legitimate consideration, the traffic concerns here “lie in the nature of the road” not the use of the store. Use of this road has increased in connection to population growth in the surrounding area. Furthermore, the topography of the road lended itself to speeding drivers. These factors were present regardless of whether the convenience store sold beer and wine. Similarly, any litter problems were likely to remain, notwithstanding the proposed use, because, it wad illogical that “an individual who purchases beer and wine is going to dispose of the container while out in the parking lot.” Further, the record did not support a finding that inebriated individuals would come to the store and be permitted to purchase beer and wine.

Almeida v Arruda, 89 Mass App Ct 241, 241-48 (MA App. 3/18/2016)


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