Almeida, et al. v. Arruda, et al. (Lawyers Weekly No. 11-032-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-292 Appeals Court JILLIAN ALMEIDA & others[1] 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 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 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 […]