Daily Development for Thursday, September 15, 2005

by: Patrick A. Randolph, Jr.

Elmer F. Pierson Professor of Law

UMKC School of Law

Of Counsel: Blackwell Sanders Peper Martin

Kansas City, Missouri


ZONING AND LAND USE; PRE-EXISTING NONCONFORMING USES: Notwithstanding issuance of a building permit and certificate of occupancy, if landowner's use of property for s truck maintenance business is carried out without a special use permit in violation of a zoning bylaw, it does not attain lawful nonconforming status, and a separate statute of limitations barring actions to terminate uses already commenced by landowner and its tenants does not make future uses through additional tenants valid as nonconforming uses.

Bruno v. Board of Appeals of Wrentham, 818 N.E.2d 199 (Mass. App. Ct. 2004).

In 1984, Delphic obtained site plan approval from the Wrentham Planning Board to operate a truck maintenance and refueling depot on its land. In 1985, the Wrentham building inspector issued a building permit to Delphic, and a certificate of occupancy was issued later that year. At the time Delphic received this site plan approval and these permits, the Wrentham zoning bylaw ("Bylaw") required such a use to not only obtain site plan approval, but also a special permit from the Board. Delphic did not obtain any special permit at that time.

In March 1996, Delphic's was considering bringing a new tenant onto the property, perhaps in conjunction with existing tenants. That tenant applied for an occupancy permit, and the building inspector denied that request on the grounds that the special permit requirement of the Bylaw had not been complied with. The Wrentham Zoning Board of Appeals ("ZBA") upheld the building inspector's determination, and Delphic appealed. A Superior Court judge found that because the use of the property for truck maintenance was not lawful when it began in 1985, the use was not permitted to have protection under G.L. c. 40A, §6 as a prior nonconforming use. The Appeals Court agreed.

In its argument to the Appeals Court Delphic asserted that the Board's 1984 site plan approval was the functional equivalent of a grant of a special permit; and that the unlawful use of the facility without a special permit, but with an original issued building permit, acquired lawful nonconforming status under G.L. c. 40A, §6, once the statutorily prescribed six-year time limitation has passed. The court rejected all three arguments.

The Court also rejected Delphic's contention that the Planning Board's approval of the site plan application was the functional equivalent to a grant of a special permit. Delphic claimed that under the 1984 version of the Bylaw, the site plan and special permit standards for approval were "virtually identical" and that the Board's approval of the site plan was equivalent to a special permit because the Board made an "undisclosed or unexpressed determination that…the proposed use complied with the bylaw." The Court disagreed, noting that special permit review is a statutorily created process, whereas site plan approval is a process established by a municipality. Wrentham "clearly differentiates" between the two, placing them in different articles of the Bylaw. Further, here the Board's decision granting site plan approval applied conditions only applicable under the site plan article, and did not recite any of the standards applicable to special permits.

Lastly, the Court denied the portion of Delphic's appeal that claimed that the use at the property had acquired legal nonconforming status. G.L. c. 40A, §7 states that "if real property has been improved in accordance with the terms of the original building permit," no action to declare that use violative of zoning, or otherwise unlawful, shall be permitted unless it is brought within six years of the commencement of the alleged violation. G.L. c. 40A, §6 states that a bylaw "shall not apply to structures or uses lawfully in existence or lawfully begun…before the first publication of notice of the public hearing on such…bylaw."

Delphic argued that because the use of the facility for truck maintenance was begun under an "original building permit," the fact that no one challenged the use for six years allowed the use to garner lawful, but nonconforming status. The court reiterated that the running of the limitations period in §7 does not render the structure or use lawful, but rather merely immunizes it from an enforcement action. The court also ruled that the limitation period in §7 only applies to initially lawful uses. Not only does §6 expressly not refer to §7, to extend its protection here would "impermissibly augment the extent" of the relief afforded by §6 by allowing unlawful uses to attain zoning protection. For these reasons, the court held that Delphic's unlawful use was not converted to a lawful nonconforming use under §6.

Comment: This case is a lot closer than might first appear. The editor is not sure that the statute of limitations of Section7, above, is all that common, and it adds an interesting twist here. Delphic and its prior tenants, apparently, will be permitted to continue the activities they began under the original building permit, even though they are characterized as "unlawful." But Delphic will not be able to rent to additional tenants. (The court noted that in a footnote that it did not have before it the question of whether the bar of Section 7 extends to benefit "successors in interest" of Delphic, but doesn’t really say how the instant case is different.)

The court also admitted that dicta in prior cases did contain language suggesting that an activity protected by the statute of limitations was the equivalent of a nonconforming use and ought to be analyzed the same way.

We really don’t know, at least from this opinion, what subtle differences there are between Delphic operating a truck maintenance facility with existing tenants and operating with new tenants. The difference is only technical, it would appear, but technical means a lot in the zoning world.

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