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15-P-292                                               Appeals Court

    JILLIAN ALMEIDA & others1      vs.   ANTONIO ARRUDA & others.2


                              No. 15-P-292.

           Bristol.       January 12, 2016. - March 18, 2016.

             Present:    Kafker, C.J., Cohen, & Blake, JJ.

   Alcoholic Liquors.      Zoning, Nonconforming use or structure.


     Civil action commenced in the Superior Court Department on
October 18, 2011.

     The case was heard by Robert J. Kane, J.


     Marc R. Deshaies for the plaintiffs.
     Walter Fraze, Jr., for Antonio Arruda and another.


     KAFKER, C.J.       This appeal arises from a dispute over the

addition of beer and wine sales at a convenience store in the

town of Westport.       The store, owned by Antonio and Darlene


     1
       Keith Almeida, Kathryn E. Carreiro, Louis Carreiro, Kevin
Danis, Lori Danis, Kathleen M. Goncalves, Manuel Goncalves, Jane
Owen, Allen W. Rencurrel, Lori E. Rencurrel, and Susan L.
Strauss.
     2
       Darlene Arruda and the zoning board of appeals of
Westport. The latter did not file a brief or otherwise
participate in this appeal.
                                                                    2


Arruda (collectively, Arrudas) and located on land that is

currently zoned as residential, operates as a lawful,

preexisting nonconforming use pursuant to G. L. c. 40A, § 6.

The Arrudas sought a finding by the zoning board of appeals of

Westport (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 is not substantially more

detrimental to the neighborhood.   The plaintiffs, abutters to

the store, appealed pursuant to G. L. c. 40A, § 17.     After a

bench trial, a 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."   Judgment entered and the plaintiffs appealed.

We affirm.

     Background.   The convenience store is located on land that

is currently zoned for residential use.   The Arrudas purchased

the store in 2005, at which time it presumably was operating as

a lawful nonconforming use under G. L. c. 40A, § 6.3    The store

was within commonly owned commercial space that also contained a

beauty shop and an insurance company.   In 2006, the Arrudas

     3
       The record does not indicate at what point in time the
land was rezoned, presumably from commercial or mixed use to
residential. Because neither party argues to the contrary, we
assume that the land's commercial use was permissible prior to
the adoption of its current zoning classification.
                                                                    3


sought permission from the 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.    Apparently no one

appealed the board's decision.

    In September, 2011, the Arrudas leased the store to Lino

Rego while maintaining ownership of the property.    The Arrudas

again petitioned the board to allow the sale of beer and wine at

the store.    After a public hearing, the board voted in favor of

the Arrudas, finding that "the addition of beer and wine sales

to the pre-existing non-conforming . . . use list for this

property is not substantially more detrimental to the

neighborhood."

    Pursuant to G. L. c. 40A, § 17, the plaintiffs filed a

complaint in Superior Court seeking to reverse the board's

decision.    The judge determined that "the proposed sale of beer

and wine fails to constitute a substantial change in use, and

fails to constitute 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

"integrate into the current operations of the store," occur in

the same space in which other groceries were sold, and occupy
                                                                    4


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 is located than to any proposed change

in the store's operation, that Rego'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.

     Discussion.    A prior nonconforming use is one that is

lawfully carried on at the time a zoning ordinance or by-law is

adopted that prohibits that use.   Mendes v. Board of Appeals of

Barnstable, 28 Mass. App. Ct. 527, 529 (1990).    The convenience

store here was in operation before the land was zoned for

residential use and, therefore, is a prior nonconforming use.

See G. L. c. 40A, § 6.

     Prior nonconforming uses, and any proposed changes,

extensions, or alterations, are governed by G. L. c. 40A, § 6.4


     4
       General Laws c. 40A, § 6, inserted by St. 1975, c. 808,
§ 3, provides, in relevant part: "Except as hereinafter
provided, a zoning ordinance or by-law 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 ordinance or by-law . . . but shall apply to any change or
substantial extension of such use. . . . 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 such change, extension or alteration
                                                                   5


Pursuant to this statute, 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 is therefore subject to later amendments to

an ordinance or by-law.   Ibid.   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

of the Westport zoning by-laws, 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."5



shall not be substantially more detrimental than the existing
nonconforming use to the neighborhood."
     5
       General Laws c. 40A, § 6, "prescribes the minimum of
tolerance that must be accorded to nonconforming uses." Nichols
v. Board of Zoning Appeal of Cambridge, 26 Mass. App. Ct. 631,
633 (1988), quoting from Inspector of Bldgs. of Burlington v.
Murphy, 320 Mass. 207, 209 (1946). However, municipalities
maintain the right to regulate or even to forbid changes in
nonconforming uses through zoning by-laws. Blasco v. Board of
Appeals of Winchendon, 31 Mass. App. Ct. 32, 39 (1991).
Westport's by-laws, consistent with c. 40A, § 6, allow changes
pursuant to art. 4.1.2, which states, "A non-conforming use or
structure may be changed provided there is a finding by the
[board] that such change shall not be substantially more
detrimental than the existing non-conforming use to the
neighborhood." Article 4.2 states, "It is the intent and
purpose of these By-Laws to conform with M.G.L. Chapter 40A and
amendments thereto, and to the extent that any provisions hereof
are in conflict with the provisions of said Chapter 40A, the
                                                                     6


    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 as follows:   (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.     Powers

v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973).

See Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966); Derby Ref.

Co. v. Chelsea, 407 Mass. 703, 712 (1990).   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.   Cape Resort Hotels,

Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205, 212

(1982).   The analysis and the result depend "almost entirely on

the particular facts of [the] case."   Powers, supra.

    On appeal, we are bound by the trial judge's findings of

fact, including all reasonable inferences, that are supported by

the evidence.   See Twin Fires Inv., LLC v. Morgan Stanley Dean

Witter & Co., 445 Mass. 411, 420 (2005); T.W. Nickerson, Inc. v.

Fleet Natl. Bank, 456 Mass. 562, 569 (2010).    Such findings will

only be set aside if clearly erroneous.   Mass.R.Civ.P. 52(a), as



provisions of Chapter 40A shall supersede and control the
subject matter thereof."
                                                                     7


amended, 423 Mass. 1402 (1996).   The judge's legal conclusions

are reviewed de novo.   Anastos v. Sable, 443 Mass. 146, 149

(2004).   Here, the judge's findings of fact are supported by the

record and support his conclusion that the proposed sale of beer

and wine satisfies all three prongs of the test and therefore

"fails to constitute a substantial change in use."6

     1.   Nature and purpose of prior use.    Citing the Supreme

Judicial Court decision in Jasper v. Michael A. Dolan, Inc., 355

Mass. 17 (1968), as controlling, the plaintiffs argue that the

addition of beer and wine sales does not reflect the nature and

purpose of the prior nonconforming use and therefore is not

protected under G. L. c. 40A, § 6.     In Jasper, supra at 24, the

court held that the addition of hard liquor sales at a self-

service food market previously licensed to sell beer and wine

constituted a "new use" because it did not reflect the nature

and purpose of the preexisting use.7    However, Jasper involved

more than just the addition of hard liquor; the change in use

also included partitioning the building into two distinct

     6
       We think the judge used the term "substantial change" to
refer to any "change or substantial extension" that falls
outside of the protections of G. L. c. 40A, § 6. See Barron
Chevrolet, Inc. v. Danvers, 419 Mass. 404, 410 n.9 (1995) (trial
judge's use of the term "substantiality threshold" presumed "to
refer to the requirements for a change to a nonconforming use to
be denied the protections of G. L. c. 40A, § 6").
     7
       The court also held that it violated the second prong
regarding quality and character as well as degree of use.
Jasper, supra.
                                                                     8


stores, a self-service food market and a liquor store, each with

separate entrances.   See id. at 21.   See also Derby Ref. Co.,

supra at 713, quoting from Jasper, supra at 24 ("Our holding in

Jasper rested principally on the consideration that 'the

operation of a separately conducted all-alcoholic package store

is substantially different from the sale of beer and wine in

connection with a food store'" [emphasis supplied]).    We agree

with the judge that Jasper is distinguishable from this case

because here, 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.    Our decisions do

not require that a proposed use be indistinguishable from a

prior use in order to be protected as a prior nonconforming use.

Compare Powers, 363 Mass. at 659 (expanding retail sale of

candles business to include various "gift shop" and other

noncandle-related items did not change nature and purpose of

retail sales business); Derby Ref. Co., 407 Mass. at 713

(converting petroleum storage facility to liquid asphalt storage
                                                                   9


facility did not change nature and purpose of use, which

remained bulk deliveries, bulk tank storage, and wholesale

distribution).   Contrast Cape Resort Hotels, Inc., 385 Mass. at

212-213 (shifting from traditional, full-service summer resort

hotel to large entertainment complex constituted change in

nature and purpose of prior use).8

     2.   Quality, character, and degree of use.   There is also

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 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."    Barron

Chevrolet, Inc. v. Danvers, 419 Mass. 404, 411 (1995).      See

Derby Ref. Co., supra at 714 (second prong satisfied when

"nothing suggest[s] that . . . changes were either extraordinary

or unreasonable or that they changed the fundamental nature of

the original enterprise").   The judge determined that the beer

and wine sales would not predominate but rather would "operate

     8
       The plaintiffs also argue that the proposed use does not
meet the first prong because the "introduction of the sale of
beer and wine at [the convenience store] does not reflect the
nature and purpose of the Westport Zoning By-Law," which "is to
prohibit retail sales in residentially zoned districts." This
argument, however, is misguided as it does not state the correct
test. The proposed use must reflect the nature and purpose of
the prior use, not the nature and purpose of subsequently
enacted by-laws. See, e.g., Derby Ref. Co., 407 Mass. at 712.
                                                                   10


as an adjunct to the sale of groceries and sundries that the

store presently sells."   This determination is supported by the

judge's finding that of 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.   See Derby Ref. Co., supra; Barron Chevrolet, Inc.,

supra.   Contrast Cape Resort Hotels, Inc., 385 Mass. at 213

(transforming traditional full-service hotel with dining room,

reading room, and lobby into entertainment complex with three

"clubs" and game room "demonstrates a fundamental difference in

'the quality or character, as well as the degree, of use'"),

quoting from Bridgewater, 351 Mass. at 23; Hinves v.

Commissioner of Pub. Works of Fall River, 342 Mass. 54, 57

(1961) (transforming grocery store into catering service

constitutes use different "in quality and not merely in degree"

[citation omitted]).   Therefore, the second prong of the test is

satisfied.
                                                                    11


     3.   Different in kind in its effect on neighborhood.     In

support of their contention that the addition of beer and wine

sales at the store is an impermissible expansion of the prior

nonconforming use, the plaintiffs argue that these sales would

be substantially more detrimental to the neighborhood.

Specifically, the plaintiffs point to potential increases in

traffic and litter, as well as safety concerns related to

inebriated customers.   The judge's findings support the

conclusion that the third prong of the test is satisfied.9

     Although increased traffic is a legitimate consideration,

see Powers, 363 Mass. at 663, the judge noted that 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 lends itself to speeding drivers.     These

factors are present regardless of whether the convenience store

sells beer and wine.    Similarly, any litter problems are likely

to remain, notwithstanding the proposed use, because, as the

     9
       Although the judge clearly found the third prong of the
test satisfied, he used terminology referring to "detriment"
that appears to blur the distinction between the third prong and
the separate inquiry under the Westport by-laws allowing a
change in use upon a finding that the change is not
"substantially more detrimental than the existing non-conforming
use to the neighborhood." As his factual findings clearly
satisfy the third prong, any confusion in terminology is
immaterial. Because here the proposed use is not a change under
G. L. c. 40A, § 6, no finding as to substantial detriment to the
neighborhood is necessary.
                                                                  12


judge noted, it is illogical that "an individual who purchases

beer and wine is going to dispose of the container while out in

the parking lot."   The judge concluded that the record did not

support a finding that inebriated individuals would come to the

store and be permitted to purchase beer and wine.   We agree.10

Therefore, the judge's findings support the determination 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.

Contrast Marblehead v. Rosenthal, 316 Mass. 124, 127-128 (1944)

(different effect on neighborhood when tailor shop with minimal

hand-washing of garments transitioned into completely mechanized

dry cleaning establishment); Powers, supra (converting storage

building to wholesale shipping and receiving center resulted in

increased truck traffic different in kind in its effect on

neighborhood).



    10
       The judge did err, however, in relying on evidence that
Rego was a responsible operator with the necessary background
and experience to guard against the sale of beer and wine to
intoxicated customers. The proper focus is on the particular
use, not the particular owner or operator, which may change over
time. See CHR Gen., Inc. v. Newton, 387 Mass. 351, 356 (1982)
("A 'fundamental principle of zoning [is that] it deals
basically with the use, without regard to the ownership, of the
property involved or who may be the operator of the use'"),
quoting from 1 Rathkopf, Zoning and Planning § 1.04, at 1-21
(4th ed. 1982). See also Revere v. Rowe Contr. Co., 362 Mass.
884, 885 (1972) (statutory protections afforded to nonconforming
use are "not personal to the particular owner or occupant," but
instead relate to use itself). The error, however, was
immaterial.
                                                                 13


    Conclusion.   We conclude that the evidence supports the

judge's determination that the sale of beer and wine satisfies

the three-prong test.   Therefore, in the instant case, the

proposed sale of beer and wine at the convenience store does not

constitute a change in use and is thus protected as a prior

nonconforming use under G. L. c. 40A, § 6.

                                    Judgment affirmed.
