CHATHAM – Since its construction in 1915, the former Chatham Bowling Alley building at 45 Chatham Bars Ave. has been a commercial building, and the town is wrong in trying to stop its continued use for commercial purposes, property owner Chatham Bars Inn argues in a lawsuit filed against the town last week.
The inn filed suit in Barnstable Superior Court seeking to overturn the zoning board of appeals' June 30 decision backing the determination by Building Commissioner Justin Post that the building's use has been abandoned and it cannot be used for commercial purposes.
Post issued a cease and desist order in May after neighbors complained about the inn using the structure for laundry drop off and pick up. He said that the lack of activity or use of the building for more than two years meant that under the town's bylaw the commercial use was abandoned and the property reverted to the underlying zoning, which is residential.
In its July 27 suit, CBI attorney Matthew Kozol followed the same tack he'd taken in the hearing before the zoning board. He argued that the structure pre-dates zoning and the bowling alley was a pre-existing, nonconforming use. A special permit issued in 1971 allowed the conversion of the pre-existing nonconforming use from the bowling alley to a storage warehouse, and further stated that a special permit use is not subject to abandonment.
He argued that the so-called “dead storage” use that was allowed under the special permit has continued uninterrupted since that time. The building was previously owned by the Great American Insurance Company, which owned CBI before selling the inn to its current owner in 2006. CBI purchase the property last September. At the time of the sale, the items inside the warehouse were the property of CBI, Kozol's suit stated.
Prior to CBI purchasing the property, the town never informed the previous owner that the use was abandoned, Kozol stated, nor was there any intent to abandon the use.
He asserts in the suit that “officials from the town of Chatham decided in 2015 that the property would be better used for public parking which would require the demolition of the structure on the property.” The town “attempt to purchase the property from Great American with a plan to convert the use into one for commercial public parking,” but it was sold to CBI instead.
There had been a small fire and water leakage in the building and in 2015 Post asked Great American to submit an application to demolish the building, but that never happened. Rather than spend the money to repair the structure, Great American sold the property, together with the former dorm at 20 Chatham Bars Ave., to CBI for $2 million.
After CBI bought the property, it removed the dead storage items so repair work could be done. Post issued a building permit for the work but specified that it was for safety only and that no use was allowed. In May Post issued a cease and desist order for all activity connected with the use of the structure.
Kozol states in the suit that it was only after CBI – or an entity affiliated with CBI, as it is termed in the document – purchased the property that the town took the position that the use was abandoned. He notes that CBI is involved in other lawsuits against the town.
Kozol argued in the suit that the special permit runs with the land and not the building and that it is “not susceptible to 'abandonment' under the town's zoning bylaw. On June 30 the zoning board unanimously denied CBI's appeal of Post's order.
The order, Kozol asserts, was “overbroad and impermissible” and the ZBA's upholding Post was “unreasonable and capricious” and exceeded the board's authority.
He asks that the court annul the ZBA decision and rule in favor of CBI.
In its decision, the zoning board also ruled that when the property was sold in 2007, conditions on the 1971 special permit limiting the use to a specific corporate entity were violated. The recent use for laundry drop off and pickup also violated the time of operations restrictions imposed in the special permit, according to the ZBA decision letter. Those violations invalidated the 1971 special permit, the board ruled.