Published in the March 10, 2020 edition.
By MARK SARDELLA
WAKEFIELD — The Zoning Board of Appeals is described as a quasi-judicial board because it conducts hearings similar to court proceedings. Attorneys represent clients in cases in front of the board. Witnesses are sworn in before providing testimony. The ZBA’s role is to objectively determine facts, draw conclusions and issue decisions that may affect the legal rights, duties or privileges of specific parties.
Seldom has that description been more applicable than in a case currently before the Wakefield ZBA that could determine the future of a West Side business. A decision is expected at tomorrow night’s ZBA meeting.
The case involves an automobile repair shop located at 343 Albion St. (on the corner of Jordan Avenue).
At its Feb. 26 meeting, the ZBA heard a case brought by David A. Kelly and Mary A. Kelly of 48 Jordan Ave. They were appealing a Nov. 25, 2019 decision of Building Inspector Jack Roberto and asking that the board issue an order to cease and desist use of the property as an automobile repair shop.
The Kellys based their request on their contention that the grandfathered legal nonconforming use of the property as a gas station with minor repairs on the side had been abandoned in favor of a full-time auto-repair shop.
Roberto had declined in November 2019 to issue a cease and desist order. David Kelly and his attorney were asking the Board of Appeals to overturn the Building Inspector’s decision and issue a cease and desist order based on the fact that its use as a gas station has been abandoned.
After listening to both sides, the ZBA took the matter under advisement and is expected to render its decision at Wednesday night’s meeting.
Representing the Kellys was attorney Kimberly Bielan of Moriarty Troyer & Malloy, a real estate law firm based in Braintree.
Local attorney Brian McGrail represented Ken Parlee, principal of Acorn Spruce Properties, LLC, the owner of the property at 343 Albion St.
Attorney Bielan led off, accompanied at the table by David Kelly, who is also an attorney.
Bielan noted the property is in the Single Residence district, but since about 1920 (pre-zoning), the site at 343 Albion St. has been used principally as a gas station, with auto repairs comprising an ancillary use. She noted that at one time Mary Kelly’s family owned the property and her brother once operated the gas station.
In the early 1990s, a large parcel of land, which included the property in question, was subdivided. A 1993 ZBA decision confirmed the property’s pre-existing non-conforming use as a “gasoline/service station.”
After that, Bielan noted, the use continued. But by 2006, she said, more vehicles were being stored on the outside and repairs seemed to be taking place on weekends. Kelly complained at the time and the Building Inspector ordered the site cleaned up.
Subsequent to that, she said, gas sales were discontinued and no gas has been sold there since 2011. Bielan argued that the use of the site had changed from its primary use as a gas station with minor repairs on the side to an auto repair shop. Therefore, she maintained, the protected non-conforming use as a gas station has been abandoned and an order should be issued to cease and desist its current use as an auto repair shop.
ZBA member Jim McBain questioned Bielan’s claim that historically the site was principally a gas station. He asserted that it was impossible to know whether gas or repair work was the dominant use.
Board member Chip Tarbell agreed with McBain and argued that Bielan had no proof other than hearsay from her client that the primary use of the site was gasoline sales.
Kelly observed that in 1993 the board decided that it was a “gasoline/service station.” But today, he noted, it is an auto repair shop.
“That’s a different use,” he said. “That’s not what it was. It was a gas station.”
ZBA member Tom Lucey recalled growing up in the neighborhood and said that he remembered the owners at the time.
“They were mechanics who sold gas,” Lucey said.
Tarbell said that the question boiled down to this: If either gasoline sales or automobile service is eliminated, does that change it enough to conclude that the legal non-conforming use as a gasoline/service station approved in 1993 has been abandoned.
Bielan argued that it meant exactly that.
“Repair has taken over the property,” she said. “That’s a change in use.”
Then it was McGrail’s turn.
With client Ken Parlee alongside, McGrail argued that whether gas sales or repairs were the “principal use” was irrelevant.
“Both uses happened,” he said, adding that the 1993 ZBA decision referenced both gas and service. You can give up one or the other and it doesn’t constitute a change in use, McGrail insisted, noting that there have been no changes or additions to the building.
McGrail observed that the Building Inspector’s ruling was based on the fact that auto repairs are allowed under the Zoning Bylaw’s definition of a gas station and that auto repair work was not a new use but a continuation of a lawful non-conforming use on the property.
McGrail argued that there was no evidence to support Kelly’s claims other than Kelly’s own self-serving statements.
“They want everything to stop,” McGrail said. “They want to put someone out of business.”
McGrail maintained that the burden of proof rested with the petitioners (the Kellys).
“They need to give you solid evidence so you can make a finding,” he told the board. “Whoever comes here looking to put someone out of business better come well-armed. They aren’t even close to meeting that burden. It’s the petitioners against the Building Inspector. My client is collateral damage.”
McGrail maintained that the elimination of gas sales resulted in even less impact on the neighborhood. He cited a Land Court case in Brockton in which it was found that the elimination of one of several legal nonconforming uses did not constitute a change of use under the law.
Bielan rebutted McGrail’s arguments.
“Our argument is that auto repairs on the site have expanded since gas was abandoned,” she said. “Our argument is that there has been a change or extension of the use.”
Kelly summed up his position succinctly.
“It used to be a gas station,” he insisted. “It isn’t. It’s an auto repair shop.”
After ZBA Chairman David Hatfield closed the hearing, board members indicated that they would like some time to weigh the arguments.
A decision is expected at Wednesday night’s meeting.