Campbell v. City Council of Lynn

O’Connor, J.

(dissenting). A Land Court judge affirmed a decision of the Lynn zoning board of appeals which upheld the issuance of a building permit authorizing the defendant owners to “make certain changes to the premises, including changing doors and windows, enlarging closets and adding an elevator.” Ante at 777 n.6. The only issue on appeal is whether the judge was right. Unlike the court, I believe that the judge erred.

It is clear, and no one contends otherwise, that the premises enjoyed nonconforming status. General Laws c. 40A, § 6 (1990 ed.), provides in relevant part that “[p]re-existing nonconforming structures . . . 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 [here the Lynn zoning board of appeals] . . . that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use[1] to the neighborhood.” There has been no finding by the Lynn zoning board of appeals that the changes the owners wish to make to the structure “shall not be substantially more detrimental than the existing nonconforming [structure] to the neighborhood.” Therefore, the issuance of the building permit should not have been upheld. Because such a finding is a prerequisite to the grant of a building permit, the case should be remanded by the Land Court to the Lynn zoning board of appeals for the board to consider whether such a finding is *784appropriate. The question to be considered is not concerned with the use of the premises but only with whether the structure with the proposed physical changes will be substantially more detrimental to the neighborhood than the structure in its present condition. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 22-23 (1987). 2

The court states, ante at 777 n.6, that “[t]his case was decided in the Land Court solely on the basis of G. L. c. 40A, § 3, second par., without reference to the possible application of [G. L. c. 40A,] § 6,” and therefore the court confines its inquiry to the issues under G. L. c. 40A, § 3, second par. According to the Land Court judge’s memorandum of decision, the plaintiffs argued in that court that a finding under G. L. c. 40A, § 6, is required. The plaintiffs have made the same argument on appeal and, in my view, they are correct and the case should be decided on that basis.

Confining its inquiry to the issues under G. L. c. 40A, § 3, the court states that local officials may, “on an appropriate showing, decide that facially reasonable zoning requirements concerning bulk and dimension cannot be applied to an educational use occupying a particular site because application of the requirements would improperly nullify the protection granted to the use, or because compliance with the requirements would significantly impede an educational use, in either instance without appreciably advancing municipal goals embodied in the local zoning law.” Ante at 778. The court states that, when the decision of the local authorities is challenged, “a judge must decide whether the action taken by the local zoning officials was justified under G. L. c. 40A, § 3, second par. This will often be a fact-based inquiry. Trustees of Tufts College v. Medford, [ante at 778-779].” For the several reasons I expressed in my separate opinion in the Tufts case, I do not agree that judges are empowered by G. L. c. 40A to declare that zoning regulations, which are *785reasonable on their face and would apply to a particular parcel of land or structure if the land or structure were devoted to a use not protected by G. L. c. 40A, § 3, are not equally applicable in a case in which their application would diminish or impede or prevent a “protected” use. One might reasonably wonder what is the source of a judge’s or appellate court’s authority to rule that, even though c. 40A, § 3, provides that a municipality may adopt reasonable zoning regulations and land or structures devoted to protected uses shall be subject to them, particular land or structures, in given circumstances, shall not be subject to them.

Nothing in G. L. c. 40A, § 3, suggests that, if the small lot involved in this case had not had nonconforming status, a religious or educational institution, with judicial approval, could have purchased the lot and totally covered it with a church or school on the ground that such lot coverage is essential to the protected use. Yes, churches and schools are protected uses, but the court misunderstands the degree of protection the statute provides. By the express terms of the statute, the protection is limited by its being subject to reasonable regulations. A municipality may not discriminate against such uses, but it need not discriminate in favor of them. According to the plain language of G. L. c. 40A, § 3, a municipality may not exclude protected uses from its jurisdiction, but it may adopt reasonable dimensional-type zoning regulations to which protected and unprotected uses alike shall be subject..

Of course it is true, as the court states at the conclusion of its footnote 6, ante at 777, that since the court has “conclude [d] that the owners are entitled to a measure of relief based on § 3 . . . [tjhere is ... no reason to require them to recommence proceedings under § 6. . . .” The court, however, should not have concluded that the owners are exempt under § 3 from the requirements of the Lynn zoning ordinance, which are nondiscriminatory and rationally related to the lawful purposes of zoning regulations enumerated in St. 1975, c. 808, § 2A. The court should hold that the owners are exempt from those requirements only if they *786can meet the conditions set forth in G. L. c. 40A, § 6, relative to nonconforming structures.

‘The concluding portion of the quoted provision must be read as follows: “shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood” (emphasis added). Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 21 (1987). This statute presents “one of those rare instances in which a court must overcome its reluctance to supply a word or words which were not employed by the Legislature (see, e.g., Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 479 [1986]) in order to render a statute intelligible and so effectuate its obvious intent.” Id.

If the proposed changes are limited to windows, doors, and the interior of the structure, it is difficult to see how they would be more detrimental to the neighborhood than the structure in its present state. Ante at 777 n.6.