Barron Chevrolet, Inc. v. Town of Danvers

646 N.E.2d 89, 419 Mass. 404, 1995 Mass. LEXIS 21
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 6, 1995
StatusPublished
Cited by12 cases

This text of 646 N.E.2d 89 (Barron Chevrolet, Inc. v. Town of Danvers) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barron Chevrolet, Inc. v. Town of Danvers, 646 N.E.2d 89, 419 Mass. 404, 1995 Mass. LEXIS 21 (Mass. 1995).

Opinion

Abrams, J.

The plaintiff, Barron Chevrolet, Inc., is an automobile dealership in the town of Danvers (town). On its property, the plaintiff maintains three free-standing signs, erected pursuant to setback variances granted by the Danvers zoning board of appeals (board) in 1969 and 1972. The 1969 variance permitted the erection of two signs closer than the then-existing fifty-foot setback from the street line. The 1972 variance permitted the erection of a third sign within the setback area, but further than thirty feet from the street line. Other than their location on the premises, the signs complied with the local zoning by-laws at the time they were erected. All three signs have been used and maintained continuously from the dates on which they were erected, and each was erected within six months of the allowance of the relevant variance.

In August, 1987, the plaintiff’s property was rezoned and placed within the Route 114 Corridor Zone A District, a zone created and governed by § 25 of the town’s zoning bylaws. In the new district, only one “identifying” sign is permitted on the property; the area of any free-standing sign is limited to 100 square feet; the street setback is twenty-five feet; and the maximum sign height is twenty feet.2 The plaintiff’s signs do not conform to the new requirements. The plaintiff has three “identifying” signs. Two exceed the height limit and two exceed the sign area limit. The by-law has a “grandfather” clause which permits the maintenance of preexisting nonconforming signs, but not their alteration.3

[406]*406In May, 1989, the plaintiff filed with the board an application seeking a “special permit” to replace the panels on two of the three signs. It requested permission to replace panels on one sign that read “Leasing and Rental” with panels reading “Used Cars” and panels on another sign that read “OK Used .Cars Barron” with panels displaying the “Geo” emblem. The board denied the application on the ground that, because the signs originally were erected pursuant to variances, they were not a prior nonconforming use under G. L. c. 40A, § 6, par. 1 (1992 ed.). Rather, the board ruled, a modification of the variances was necessary for the plaintiff to obtain relief.

The plaintiff then filed this action in the Land Court appealing the board’s decision, under G. L. c. 40A, § 17 (1992 ed.), and G. L. c. 240, § 14A (1992 ed.), naming the board, individual members of the board, and the town as defendants. Shortly thereafter, the plaintiff applied for and promptly was granted a modification of its variances allowing it to change the sign panels. The plaintiff nonetheless continued this action. The plaintiff waived the counts brought under G. L. c. 40A, § 17, and filed a motion for summary judgment on the count under G. L. c. 240, § 14A. After briefing and a hearing, the Land Court judge granted the motion and entered a decision in favor of the plaintiff on July 1, 1992. The defendants filed timely notice of appeal on July 16, 1992. We transferred the case here on our own motion. We affirm the decision of the Land Court.

A. Mootness. The defendants argue that, because the plaintiff was granted the variances, it is no longer an aggrieved party under G. L. c. 40A, § 17, and the case is moot. See Matter of Sturtz, 410 Mass. 58, 59 (1991), quoting Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159 (1985) (“It is the general rule that courts decide [407]*407only actual controversies. We follow that rule, and normally we do not decide moot cases”).

The case is not moot. The action seeks relief as to the applicability of the by-law, pursuant to G. L. c. 240, § 14A.4 A present, actual dispute is not required under G. L. c. 240, § 14A. See Gage v. Egremont, 409 Mass. 345, 346 n.2 (1991) (“a landowner is entitled to a decision on the applicability of zoning provisions on her land without regard to the existence of a controversy or the right otherwise to declaratory relief’). As a landowner, the plaintiff has the right to request a judicial determination of land use rights under the zoning by-law. See id.; Sturges v. Chilmark, 380 Mass. 246, 249 (1980); Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181, 185 (1968). Thus, the plaintiff’s request that the Land Court judge determine its right to change the signs in the face of the new zoning by-law, as applied by the board, is not moot and is a proper subject for judicial determination.5

[408]*408B. Necessity of variance modification. The central issue is whether the signs were prior nonconforming uses or structures. A prior nonconforming use is a use that had been allowed as a matter of right under the prior zoning by-laws, but is not allowed under a new by-law. See G. L. c. 40A, § 6; Shrewsbury Edgemere Assocs. Ltd. Partnership v. Board of Appeals of Shrewsbury, 409 Mass. 317, 320-321 (1991). This is distinct from a use permitted by a variance. Such a use cannot be a prior nonconforming use because, by definition, a variance was required and it therefore was not allowed as a matter of right. See Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 531 (1990) (“It would be anomalous if a variance, by its nature sparingly granted, functioned as a launching pad for expansion as a nonconforming use” [footnote omitted]).

The defendants argue that, because variances were necessary for the erection of the signs, the signs could not be prior nonconforming uses, and the proposed changes could only be effected through a modification of the variances. The Land Court judge reasoned that, because, at the time of their erection, the signs conformed to the applicable zoning by-laws in all respects except for their location on the property, the variances only concerned locations. In all other respects, the signs were prior nonconforming uses. Because the changes sought by the plaintiff did not relate to the 1969 and 1972 variances, the judge ruled, they did not require a modification of those variances. The defendants argue that, because the signs would not have been permitted in the absence of the variances, the changes were related and incident to the variances and could only be made on a modification thereof.

The town read the scope of the variances too broadly. While the signs were erected and maintained pursuant to the variances, the variances only addressed their location.6 The [409]*409variances did not address, and were not conditioned on, the content or any other feature or quality of the signs. The use of the land for the display of signs and the physical characteristics of the signs were allowed as a matter of right at the time the signs were erected. Thus, the Land Court judge was correct in concluding that, in all respects except for their location, the signs were lawful, pre-existing nonconforming uses and that the changes to them did not require a modification of the variances.7

C. Protection as prior nonconforming use. As prior nonconforming uses, the signs and changes to them are governed by G. L. c. 40A, § 6.8 Under this section, a by-law does not apply to a prior nonconforming use or structure, but does apply to “any change or substantial extension of such use . . . , any reconstruction, extension or structural change of such structure and [ ] any alteration of a structure ...

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Bluebook (online)
646 N.E.2d 89, 419 Mass. 404, 1995 Mass. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barron-chevrolet-inc-v-town-of-danvers-mass-1995.