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13-P-1586                                             Appeals Court

CYNTHIA WELCH-PHILIPPINO & another1 vs. ZONING BOARD OF APPEALS
                    OF NEWBURYPORT & others.2



                            No. 13-P-1586.

            Suffolk. June 2, 2014.   -   September 9, 2014.

                Present:   Grasso, Vuono, & Rubin, JJ.


 Zoning, Nonconforming use or structure, Special permit, By-law.



     Civil action commenced in the Land Court Department on
April 7, 2011.

     The case was heard by Alexander H. Sands, III, J.


     Kevin W. Lawless for the plaintiff.
     Ryan P. McManus (Diane C. Tillotson with him) for Port
Associates Limited Partnership & another.


     GRASSO, J.    Cynthia Welch-Philippino (Philippino) appeals

from a Land Court judgment determining that the planned


     1
         Anthony Philippino.
     2
       The city of Newburyport, Port Associates Limited
Partnership, and Whittier Health Network, Inc.
                                                                     2


reconstruction of a nursing home (the project) by Port

Associates Limited Partnership and Whittier Health Network, Inc.

(the defendants), is permissible as of right under G. L. c. 40A,

§ 6.    Philippino principally challenges the trial judge's ruling

that a dimensionally conforming commercial structure is not, by

virtue of its employment for a nonconforming use, a

nonconforming structure for purposes of the first sentence of

G. L. c. 40A, § 6, first par.     We conclude, as did the trial

judge, that where the project does not work a "change or

substantial extension" (ibid.) of the preexisting nonconforming

commercial use, the reconstruction and replacement of the

existing dimensionally conforming structure with a new

dimensionally conforming structure is lawful as a matter of

right and not subject to the second sentence of G. L. c. 40A,

§ 6, which provides that preexisting nonconforming structures or

uses may only be extended or altered by special permit.

       1.   Background.   The defendants' 100-bed nursing home

facility, built in 1968, is a dimensionally conforming

commercial structure situated on a large (5.5 acre) conforming

lot in a residential zone.     Use of the facility as a nursing

home pre-dates the adoption of the Newburyport zoning ordinance,

and thus is a lawful preexisting nonconforming use.     The

defendants plan to replace the old structure with a modernized
                                                                     3


121-bed facility that will meet the dimensional requirements of

the current zoning ordinance.

     The Newburyport zoning board of appeals (board) issued a

special permit that authorized the defendants to proceed with

the project, and abutters Philippino and her husband appealed

under G. L. c. 40A, § 17.    After trial, a Land Court judge

concluded that the project (1) does not constitute a "change or

substantial extension" of the lawful preexisting nonconforming

commercial use, and (2) is therefore permissible as of right

under G. L. c. 40A, § 6, and not subject to the more restrictive

special permit requirements of the local zoning ordinance.3

     On appeal from the judgment, Philippino's primary claim is

that a conforming structure used for a nonconforming purpose is

treated as a nonconforming structure under the first sentence of

G. L. c. 40A, § 6.   Consequently, she argues, reconstruction and

replacement of such a structure is subject to the provisions of

the second sentence of that section,4 and of its cognate section


     3
       Alternatively,   the judge ruled that if a special permit
were required for the   project, the board correctly determined
that the new building   was not substantially more detrimental to
the neighborhood than   the existing structure or use, and was not
an intensification or   extension of the use under Section IX-
B.2.B(1) of the local   zoning ordinance. See note 5, infra.
     4
       The second sentence provides, "Pre-existing nonconforming
structures or uses may be extended or altered, provided, that no
such extension or alteration shall be permitted unless there is
a finding by the permit granting authority or by the special
permit granting authority designated by ordinance or by-law that
                                                                    4


of the Newburyport zoning ordinance, Section IX-B.2.5   We

disagree.   Because both the existing and replacement structures

are dimensionally conforming structures, the judge's

determination under the first sentence of G. L. c. 40A, § 6,

that the project does not entail a "change or substantial

extension" of the lawful preexisting nonconforming commercial

use ends the inquiry.6   The protections afforded under the first




such change, extension or alteration shall not be substantially
more detrimental than the existing nonconforming [structure or]
use to the neighborhood." G. L. c. 40A, § 6, second sentence,
inserted by St. 1975, c. 808, § 3. See Bransford v. Zoning Bd.
of Appeals of Edgartown, 444 Mass. 852, 857 (2005) (Greaney, J.,
concurring).
     5
       Section IX-B.2.B(1) of the ordinance requires the permit-
granting authority to find that "there will be no
intensification or extension of an existing nonconformity or the
addition of a new nonconformity." Section IX-B.2.B(2) requires
a finding that "the [project] will not be substantially more
detrimental to the neighborhood than the existing nonconforming
structure or use."
     6
       We reject Philippino's contention that the replacement
structure is not dimensionally compliant because the front-yard
setback in a residential district is thirty feet and the
building is only set back twenty-two feet. We agree with the
trial judge and the board that the twenty-foot front-yard
setback specifically designated for a building used as a nursing
home, rather than the general setback for a residential
district, controls. See Section VI-A of ordinance, "Table of
Dimensional Requirements." If each nursing home in Newburyport
had to comply with the front-yard setback of the district in
which it was located, there would be no purpose in the zoning
ordinance specifying a twenty-foot setback for nursing homes.
See Shirley Wayside Ltd. Partnership v. Board of Appeals of
Shirley, 461 Mass. 469, 475 (2012) (according deference to local
board's reasonable interpretation of its own zoning by-law).
                                                                    5


sentence of G. L. c. 40A, § 6, govern, and the provisions of the

second sentence of § 6 are not implicated.7

     2.   Discussion.   "[T]he primary source of insight into the

intent of the Legislature is the language of the statute."

International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853

(1983).   The first sentence of G. L. c. 40A, § 6, inserted by

St. 1975, c. 808, § 3, provides in pertinent part:

     "Except as hereinafter provided, a zoning ordinance or by-
     law shall not apply to structures or uses lawfully in
     existence . . . but shall apply to any change or
     substantial extension of such use, . . . to any
     reconstruction, extension or structural change of such
     structure and to any alteration of a structure . . . to
     provide for its use for a substantially different purpose
     or for the same purpose in a substantially different manner
     or to a substantially greater extent . . ." (emphases
     supplied).

By its plain language, the statute makes an important

distinction between preexisting nonconforming uses and

nonconforming structures, and articulates different bases upon

which each loses its grandfathering protection.    Nonconforming

uses lose their protection against subsequently enacted local

zoning ordinances when there is "any change or substantial

     7
       Because the judge was correct in ruling that the
protections of G. L. c. 40A, § 6, afford the defendants the
right to construct the project, we do not address the judge's
alternative conclusion that if a special permit were required,
the board correctly ruled that the project would not be
substantially more detrimental to the neighborhood than the
existing nonconforming use and would not result in any
intensification or extension of an existing nonconformity or
addition of a new nonconformity.
                                                                    6


extension of such use."   Nonconforming structures, on the other

hand, lose their protection when there is "any reconstruction,

extension or structural change of such structure," or

modification that amounts to "alteration of a structure . . .

for its use for a substantially different purpose or for the

same purpose in a substantially different manner or to a

substantially greater extent."8   See Barron Chevrolet, Inc., v.

Danvers, 419 Mass. 404, 409-410 (1995).   Significantly, there is

no language in G. L. c. 40A, § 6, suggesting that its

grandfathering provisions for nonconforming uses and structures

have application to conforming uses and structures.   We view the

omission of reference to conforming structures as significant.

See General Elec. Co. v. Department of Envtl. Protection, 429

Mass. 798, 803 (1999), and cases cited (court will not add words

to statute that Legislature did not put there).

     With respect to prior nonconforming uses and structures

that have lost grandfathering protection for the reasons just


     8
       We are not concerned here with the second "except" clause
of the first sentence of G. L. c. 40A, § 6, which provides for
exemption from local regulation where "alteration,
reconstruction, extension or structural change to a single or
two-family residential structure does not increase the
nonconforming nature of said structure" (emphasis supplied).
See Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass.
852, 859-862 (2005) (Greaney, J., concurring) (considering
whether reconstruction of dimensionally conforming structure on
undersized lot increases nonconforming nature so as to remove
protections of second "except" clause).
                                                                     7


specified, the second sentence of § 6 (see note 4, supra)

provides that "[p]reexisting nonconforming structures or uses

may be extended or altered" if the proper local authority makes

a finding "that such change, extension or alteration shall not

be substantially more detrimental than the existing

nonconforming [structure or] use to the neighborhood."   See

Barron Chevrolet, Inc. v. Danvers, supra at 412-413.

    The judge below recognized the important statutory

distinction between nonconforming uses and structures, and the

inapplicability of the statute's provisions regarding loss of

grandfathering protection when the "reconstruction, extension,

or structural change" relates to a conforming structure.

Because the defendants' existing nursing facility and its

proposed replacement are dimensionally conforming structures

that serve a nonconforming use, the judge appropriately directed

his focus to the sole question of import:   whether the project

proposed a "change or substantial extension" of the

nonconforming use.

    To answer that question, the judge correctly invoked the

familiar three-pronged test described in Powers v. Building

Inspector of Barnstable, 363 Mass. 648, 653 (1973):    (1) whether

the proposed use reflects the nature and purpose of the use

prevailing when the zoning ordinance took effect, (2) whether

there is a difference in the quality or character, as well as
                                                                    8


the degree, of use, and (3) whether the proposed use is

different in kind in its effect on the neighborhood.    Measuring

the project against those considerations, the judge concluded

that the project did not work a "change or substantial

extension" of the use because (1) the locus was operated and

would continue to operate as a nursing home, (2) operation of a

nursing home with 121 beds rather than 100 beds would not alter

the quality, character, or degree of that use, and (3) the

project would not have any adverse effect on the neighborhood

different in kind from the existing use, but would have a

"mitigating impact."9   In consequence, the judge concluded that

the project fell within the protection of the first sentence of

§ 6 and was permissible as of right.     See Schiffenhaus v. Kline,

79 Mass. App. Ct. 600, 605 (2011) (local zoning ordinance or by-

law cannot conflict with the statute).

     The determination that the project does not work a "change

or substantial extension" of the prior nonconforming use as a

nursing home is amply supported by the factual findings, and

Philippino does not seriously contest this aspect of the judge's

     9
       Here, the judge cited evidence of several salutary aspects
of the proposed facility's design, including that the
reconstructed building would stand further from the
neighborhood's residences and closer to the nearby industrial
zone, that improvements in lighting and screening would result
in less glare into the neighborhood, and that the relocation of
the loading dock would address noise concerns of the
Philippinos.
                                                                   9


decision.   Rather, she argues that the judge erred when he

concluded that the project does not fall within the § 6

limitation on grandfathering protection for "reconstruction,

extension or structural change" of a nonconforming structure.

That is so, Philippino argues, because notwithstanding that both

the existing and proposed structures comply with existing

dimensional and density regulations, they are devoted to a

nonconforming use.   Put differently, Philippino argues that a

nonconforming structure for purposes of G. L. c. 40A, § 6,

encompasses a structure devoted to a nonconforming use even when

there is no nonconformity in the structure itself.   Under

Philippino's view of the statute, a dimensionally conforming

structure devoted to a nonconforming purpose is subject to the

"reconstruction, extension or structural change" provision of

the statute, which, in turn, renders the project subject to

regulation under the Newburyport zoning ordinance.

    We conclude that the plain language of the statute does not

support such strained interpretation.   The fundamental flaw in

Philippino's argument is that it conflates structures and uses

-- measuring structural conformity by reference to the use of

the structure, and treating reconstruction of a conforming

commercial structure that serves a nonconforming use as if it
                                                                   10


were a nonconforming structure.    The statute treats structures

and uses differently.10

     As discussed earlier, in enacting § 6, the Legislature

focused on the grandfathering rights to be accorded to

nonconforming uses and nonconforming structures, drawing a clear

distinction in the protections afforded.    See Gale v. Zoning Bd.

of Appeals of Gloucester, 80 Mass. App. Ct. 331, 338 n.10

(2011); Bobrowski, Massachusetts Land Use and Planning Law

§ 6.01 (3d ed. 2011).     We discern nothing in the language of § 6

that reflects the Legislature's intent to treat the

nonconforming use of a structurally conforming building as

creating structural nonconformity.    Rather, the expressed

statutory test for loss of grandfathering protection for a

nonconforming use is whether there is a "change or substantial

extension" of the use; that for a nonconforming structure is

whether there is "reconstruction, extension or structural

change" of the nonconforming structure.

     While we are aware of no case holding that replacement of a

conforming structure devoted to a nonconforming use that does

not result in a change or substantial extension of the use is


     10
       The distinction between structures and uses within § 6,
and the potential for confusion arising from the frequent
references to the two terms in common, was the subject of
discussion in Willard v. Board of Appeals of Orleans, 25 Mass.
App. Ct. 15, 20-21 & n.9 (1987).
                                                                  11


permissible as of right under the first sentence of G. L.

c. 40A, § 6, no case holds otherwise.   Such cases as approach

the issue concern the replacement of prior nonconforming

structures devoted to a prior nonconforming use, and, further,

suggest that the statute's reach is limited to nonconforming

uses and nonconforming structures, not conforming structures

devoted to a nonconforming use.   See Powers v. Building

Inspector of Barnstable, 363 Mass. at 658 n.4 ("[T]he existence

of a lawful nonconforming use does not permit the erection of

additional buildings for the extension or enlargement of that

use" [emphasis supplied]).

    In Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of

Falmouth, 385 Mass. 205, 215 (1982), which involved a change

from a resort hotel for older customers to an entertainment

complex catering to young nonguests, the court noted that "a

valid nonconforming use does not lose that status merely because

it is improved and made more efficient," provided the changes

are "ordinarily and reasonably adapted to the original use and

do not constitute a change in the original nature and purpose of

the undertaking" (citations omitted).   Similarly, in Barron

Chevrolet, Inc. v. Danvers, 419 Mass. at 409, which involved

whether certain changes to signage constituted changes in prior

nonconforming uses, the Supreme Judicial Court noted that under

§ 6, "a by-law does not apply to a prior nonconforming use or
                                                                   12


structure, but does apply to 'any change or substantial

extension of such use . . . [and] any reconstruction, extension

or structural change of such structure . . .'" (emphases

supplied) (quoting from G. L. c. 40A, § 6).    As previously

discussed, the court emphasized that the right of a municipality

to regulate changes under the second sentence of § 6 "is limited

to the changes, extensions, reconstructions and alterations to

prior nonconforming uses and structures to which, under the

first sentence of G. L. c. 40A, § 6, zoning ordinances and by-

laws apply" (emphasis supplied).   Id. at 413.   Because the

changes there did not constitute a "change, extension,

reconstruction or alteration" of a prior nonconforming use or

structure to which, under the first sentence of § 6, zoning

ordinances and by-laws apply, the town could not regulate them.

See Derby Ref. Co. v. Chelsea, 407 Mass. 703, 713 (1990) (nature

and purpose of use -- "bulk deliveries by ocean-going vessels,

bulk tank storage and wholesale distribution" -- were unchanged

despite fact that product changed from fuel to liquid asphalt

and facilities were altered to allow for this change).

    We do not read Berliner v. Feldman, 363 Mass. 767, 770

(1973), on which Philippino primarily relies, as requiring a

different result.    Berliner did not involve the grandfathering

protection afforded to a preexisting nonconforming use under

G. L. c. 40A, § 6.   Rather, it involved interpretation of the
                                                                   13


provisions of a local zoning by-law regarding whether a

preexisting nonconforming structure (an inn) that was damaged or

destroyed by fire might be rebuilt.   Because Berliner concerned

the reconstruction of a preexisting nonconforming structure

devoted to a nonconforming use (conducting an inn in a residence

district), to the extent that the statutory predecessor of G. L.

c. 40A, § 6,11 was implicated at all, the applicable provision

was that allowing for local regulation when there is a

"reconstruction, extension or structural change" of a

nonconforming structure.   See id. at 771, 773, 774.    See also

Healy, Massachusetts Zoning Manual § 6.7.2 (4th ed. 2007)

(building in Berliner appeared to be dimensionally

nonconforming).   Accordingly, the court's statement to the

effect that the statute "does not confer the right to erect a

new building in place of an existing building used for a

nonconforming purpose," Berliner v. Feldman, supra at 770, must

be read in that limited context.12



     11
       The provisions of G. L. c. 40A, § 6, and its predecessor,
G. L. c. 40A, § 5, as appearing in St. 1954, c. 368, § 2, do not
differ for present purposes.
     12
       Although Berliner did not set forth the dimensional
nonconformities of the structure with precision, the decision
clearly refers to the inn as "a preexisting nonconforming inn,"
363 Mass. at 768, and discusses the right of the "owner of a
nonconforming structure" to rebuild. Id. at 773-775 (emphasis
supplied).
                                                               14


    In sum, the judge did not err in ruling that the project

was permissible as of right under G. L. c. 40A, § 6.

                                  Judgment affirmed.
