In a decision that brought cheers from thirsty beachgoers, the Appeals Court in Almeida v. Arruda, 89 Mass. App. Ct. 241 (2016) affirmed a lower court finding that the sale of beer and wine at a pre-existing, nonconforming convenience store was neither a substantial change in use nor a detriment to the neighborhood.
Pursuant to G.L.c. 40A, §6, a prior nonconforming use is not subject to subsequently enacted zoning restrictions. However, in certain circumstances, a change or substantial extension of such use may require compliance with current zoning requirements. In order to determine whether the sale of beer and wine is a change or substantial extension under Section 6, the lower court judge utilized the 3-prong “Powers” test. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). The 3-prong test is as follows: (1) whether the proposed use reflects the nature and purpose of the prior use, (2) whether there is a difference in the quality or character, as well as the degree of use, and (3) whether the proposed use is different in kind in its effect on the neighborhood.
At trial, evidence was introduced that only 12% of the store’s floor space would be used for beer and wine sales. Applying the Power’s test, the lower court concluded, and the Appeals Court affirmed, that the sale of beer and wine did not constitute a substantial change in use. Accordingly, the proposed use, including the sale or beer and wine, remains protected as a lawful pre-existing nonconforming use.