NORFOLK ASPHALT COMPANY, INC. v. PATRICK J. MULVEHILL, JOHN R. PERRY, HARRY T. SPENCE, BARBARA A. KINTER, and PHILIP W. RILEY, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF NORWOOD; and MARK G. CHUBET, in his capacity as the BUILDING INSPECTOR OF THE TOWN OF NORWOOD

Plaintiff Norfolk Asphalt Company, Inc. commenced this case on September 12, 2008, as an appeal, pursuant to G.L. c. 40A, § 17, from a decision of the Defendant the Zoning Board of Appeals of the Town of Norwood to deny the Plaintiff’s application for various forms of zoning relief to allow the upgrade of equipment for the manufacturing of bituminous concrete, concerning a parcel of real property and buildings, known as and numbered 601 Pleasant Street in Norwood, owned of record by Plaintiff.

On July 10, 2009, Plaintiff filed a Motion for Partial Summary Judgment. Defendants opposed the motion on August 7, 2009, and filed a Cross-Motion for Summary Judgment and an Affidavit of Mark Chubet in support thereof. Defendants filed also a Motion to Strike the portions of the Plaintiff’s motion which request that the court deem the Plaintiff’s Request for Admissions as admitted.

Plaintiff opposed the Defendants’ Cross-Motion for Summary Judgment on September 4, 2009, and filed an Affidavit of Alan D. Perkins in support thereof. Plaintiff filed also a Response to the Defendants’ Motion to Strike and a Motion to Strike the Affidavit of Mark Chubet.

On September 15, 2009, Defendants filed a Motion to Strike the Affidavit of Alan D. Perkins. Plaintiff opposed the motion on September 25, 2009.

The motions were argued before the court on September 29, 2009, and taken under advisement.

After careful consideration of all of the evidence, the court issued a Decision today, ruling that the decision of the Board of Appeals is based on legally untenable ground.

In accordance with that Decision, it is hereby:

ADJUDGED and ORDERED that the decision of the Zoning Board of Appeals of the Town of Norwood is ANNULLED;

ADJUDGED and ORDERED that the Plaintiff Norfolk Asphalt Company, Inc.’s use of the property, known as and numbered 601 Pleasant Street in Norwood to manufacture bituminous concrete is allowed as of right; and it is further

ADJUDGED and ORDERED that § 5345 of the Zoning Bylaws of the Town of Norwood does not apply to the manufacture of bituminous concrete.

By the court (Trombly, J.).