Fitch v. Bd. of Appeals of Concord
Fitch v. Bd. of Appeals of Concord
Opinion of the Court
The plaintiffs appeal from a judgment of the Land Court, entered after a bench trial, affirming the decision of the Concord board of appeals (board) upholding issuance of a building permit to FCI Investors, Inc. The plaintiffs contend that the judge erred by 1) finding that the carriage house on the property did not lose its protections as a prior nonconforming use as a residence; and 2) in upholding the particular manner in which the board calculated the size of the reconstructed residence that the defendants would be allowed to build.
Discussion. 1. Continuous nonconforming use. The plaintiffs contend that the judge erred as a matter of fact and law in finding that the carriage house was continuously used as a residence since before 1928. We are not persuaded.
A judge's findings from a bench trial must stand unless clearly erroneous, Mass. R. Civ. P. 52 (a), as amended,
Under the Concord zoning bylaw § 7.1.6, "[a] nonconforming use or structure which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning bylaw." Although the bylaws define "abandonment," they do not define "nonuse." Generally, nonuse of a nonconforming dwelling requires both vacancy and the lack of any attempt to rent, sell, or maintain the dwelling. See Bartlett v. Board of Appeals of Lakeville,
Here, the carriage house is a nonconforming structure that predates the promulgation of the Concord zoning bylaws in 1928. The judge found that it has been occupied as a residence since before 1928 with only a nineteen-month gap from 1998 to 2000. The record supports the judge's findings and the town census, which lists the residents of the carriage house with only some reasonably explainable gaps in time, is not inconsistent, as Nicholas Boynton, who owned the property from 2003 until 2014, testified that the town both knew of the residential use of the carriage house and considered it a rental unit long before his ownership. Further, there was testimony that the gaps in the census do not necessarily reflect that no one resided at the property but rather that its residents could have failed to return a completed census form. On this record, we discern no clear error.
The judge also ruled as a matter of law that, even if the gap in occupancy was longer than nineteen months, it did not qualify as nonuse since the evidence showed that the owners maintained and held out the carriage house as residential rental space. Both Bartlett and the evidence before the judge support this determination. Specifically, Michael Bushnell, who rented the carriage house from 1993 to 1998, testified that the then owner periodically asked him to do repairs on the carriage house after 1998 to maintain it as a residence.
2. Gross floor area calculation. The plaintiffs next contend that the ground floor of the carriage house should not count toward its gross floor area for purposes of Concord zoning bylaw § 7.1.5 because it was never part of the prior nonconforming use as a residence. We disagree.
"We accord deference to a local board's reasonable interpretation of its own zoning bylaw ... with the caveat that an 'incorrect interpretation of a statute ... is not entitled to deference.' " Doherty,
Concord zoning bylaw § 7.1.5 provides an exception to the special permit process for nonconforming single and two-family residences "[w]here the proposed extension
The board interpreted the provisions to include the carriage house's ground floor, which included garage areas, when calculating its original gross floor area. Section 1.3.12, which does not differentiate floor area based on use but merely ceiling height, reasonably supports the board's interpretation. Canton v. Commissioner of the Massachusetts Highway Dep't,
Judgment affirmed.
The parties also raise the issue of the plaintiffs' standing. Because standing is not outcome determinative, we assume, without deciding, that the plaintiffs have standing, and address the merits of this appeal. Mostyn v. Department of Envtl. Protection,
The judge and the board ruled that the word "extension" in § 7.5.1 incorporates the terms "reconstruction," "alteration," and "structural change." The Fitches do not contest this on appeal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.