MISC 02-284911

May 9, 2011

ESSEX, ss.

Trombly, J.


M. R. Pollock & Sons, Inc. (“Plaintiff” or “Pollock”), owner of property known as and numbered 162 North Main Street (Route 114), Middleton, Massachusetts, filed this complaint on October 31, 2002 pursuant to G. L. c. 40A, § 17, appealing a decision of the Middleton Zoning Board of Appeals (“ZBA”). The ZBA’s decision, filed with the Middleton Town Clerk on October 11, 2002, declined to overturn a cease and desist order previously issued by the Building Inspector requiring the Plaintiff to stop carrying on certain uses and activities on its property.

Plaintiffs contend they are allowed to carry on certain activities on the property because they constitute pre-existing non-conforming uses which were not illegal under the Town’s prior zoning by-law at the time they acquired the property. Defendant ZBA and the Building Inspector disagree, arguing that many of the uses to which the Pollocks have put the land today and in the recent past were never legal and therefore do not constitute non-conforming pre-existing uses which are “grandfathered”.

Findings of Fact

The land which is the subject of this action (“the Property”) is known as 162 North Main Street, also known as Route 114, in Middleton and is shown on the Town Assessors Map as Lot 67. Plaintiff M. R. Pollock & Sons, Inc. is the current record title holder of the property. The land was purchased by members of the Pollock family from Arthur H. Frazier and Eunice S. Frazier by deed dated September 7, 1965 and recorded in the Essex (South District) Registry of Deeds in Book 5299, Page 570, and was subsequently conveyed to the current owner when the corporation was formed in 1970. At the time of purchase, 162 North Main Street was in two zoning districts and was divided by Lake Street. The portion of the land to the right of Lake Street as shown on the attached “Decision Sketch” was in a business district, while the portion to the left of Lake Street was in a residential district. Under the terms of the zoning by-law, when a district boundary line divides any lot laid out and recorded prior to the time such boundary line is adopted, regulations applying to the less restrictive portion of the lot may be considered as extending no more that thirty (30) feet into the more restrictive portion provided that lot has frontage on the less restrictive district. Accordingly, in the present case, the business district would, in effect, be extended thirty feet into the residential district.

The Pollocks who originally purchased the property from the Fraziers in 1965, Milton R. Pollock and Josie D. Pollock, had rented and used portions of it since some time in 1963. Prior to that time, the Fraziers had constructed a house on the property and had been using the land as a sawmill. [Note 1] The lumber and various remnants of the Fraziers’ sawmill operation were still on the property when the Pollocks bought it in 1965. In the same decade, the Pollocks hauled and stored on their property potatoes which had been grown by a member of the Pollock family in Atlantic Canada and shipped to Middleton.

At some point in time, apparently in the late 1960s, the Pollocks began to “pile up” farm equipment and tractors on the property. The conducted “consignment sales” of used farm equipment such as tractors, hay bailers, wagons and the like. Also in the late 1960s, the Pollocks allowed a relative to store on the property long poles similar to telephone poles which were transported to Boston as needed to shore up buildings then being constructed. The pilings were stored on an adjustable trailer stored on the Pollock property until they were needed at the construction sites.

In 1971 or 1972, the Pollocks constructed on the portion of the property on the right (business) side of Lake Street what has come to be known as the “auction barn”. In this building they conducted auctions and consignment sales of the property they had accumulated. They continued having auctions of old farm equipment and other items in the barn until 1985, often with large crowds attending.

Beginning in 1987, about fifteen to twenty school buses were stored on the property by, among others, the Laidlaw and ABC Bus Companies. The drivers, in many cases housewives living in the area, came to the site early in the morning, warmed up the buses by running the engines, and then drove their routes, taking the children to school. They would then return the buses to the property and go home. Later, when it was time for school to close for the day, the drivers would return to the site, reverse the process, take the children home, and leave the buses on the site until the next school day. This occurred every school day from 1987 until approximately 2005 with the exception of the period from 1998 until 2000, during which time no buses were stored on the property.

Plaintiffs started storing “roll-off containers” on the property in 1986. This process, often noisy and usually taking place late at night, entailed taking the containers off the backs of the trucks on which they sat and storing them on-site until they were needed again. In 1987, Plaintiffs also began storing large pipes on the property. Prior to that time, in the mid 1970s, they had begun storing casings on the property . Several witnesses testified that there were always tractors and other farm equipment stored on the property during the Pollock ownership.

As has been stated, the Pollocks started selling goods and equipment from the property in 1963, and expanded the selling operation in 1984. E. J. Prescott, a plumbing company, rented the old “auction barn” on the property beginning in 1987 and began storing and selling plumbing and water-supply equipment from the site. In addition, A. L. Bouchard ran a stone crushing and construction business on the property and also stored construction equipment, bulldozers, and excavators on the property when they weren’t needed on a job elsewhere. A trailer- leasing company occupied part of the property for several years. Clearly, there has always been a great deal of business activity on the property since the Pollocks purchased it in 1965, and even before. The issue, however, is how much commercial activity was carried on, where was it located on the lot, and whether it was protected as a pre-existing non-conforming use.

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On August 26, 1999, the ZBA sent a request for enforcement (“First Enforcement Request”) to Robert Aldenberg (“Aldenberg”), the building inspector for the Town of Middleton at the time. In this First Enforcement Request, the ZBA members, apparently at the request of certain owners of residential property abutting and in the vicinity of the subject property, alleged that certain activities on the locus, such as the storage of tractor-trailers, school buses, trash dumpsters, roll-off containers, and an office trailer (“Subject Uses”), constituted nine violations of the Middleton Zoning By-Laws (“by-laws”). Aldenberg, as building inspector, investigated the claims in the First Enforcement Request and provided a detailed response to the ZBA on September 8, 1999 (“Zoning Determination”). In particular, Aldenberg found that the specific uses were protected as valid pre-existing non-conforming uses pursuant to the zoning by-laws and G. L. c. 40A, and that the remaining allegations were unfounded. Copies of Aldenberg’s opinion were filed with the ZBA, the Town Administrator, and the Board of Selectmen. A copy was also placed in the Building Inspector’s file. No appeal was taken by any party.

Almost two years after the First Enforcement Request and Zoning Determination was issued, and in response to a complaint, a Cease and Desist Order (“cease and desist order”) was issued by then Building Inspector and Zoning Enforcement Officer Alfred Jones (“Jones”) on June 20, 2002, requiring that the Plaintiff discontinue the Subject Uses on its property. Specifically, Plaintiff was notified that the operation and storage of school buses, leased trailers, and roll-off containers is in violation of the zoning by-law and that the buses, trailers and roll-off containers must be removed from the property within thirty days. A timely appeal of the cease and desist order was filed by the Plaintiff with the ZBA on July 19, 2002. On September 26, 2002, after a hearing over the course of two meetings, the ZBA voted to uphold the cease and desist order. The ZBA decision was properly filed with the Middleton Town Clerk on October 11, 2002, precipitating the filing of the current action on October 31, 2002.

A trial was held over the course of two days on November 3, 2010 and November 19, 2010. The court heard the testimony of William Cashman, Milton Pollock, Jr., Robert Aldenberg, Dwight Miller, Ronald Pollack, Richard Bienvenue, Lynn Murphy, Jeffrey Hyde, Mary Landry, and Jean Hyde. There were twenty-seven exhibits entered into evidence, some of which contained several sub-parts; the testimony was reported. At the close of evidence, Plaintiff’s counsel verbally renewed his motion for a directed verdict, which was denied by the court. The parties each filed their post-trial briefs on April 15, 2011.


General Laws c 40A, §17 provides in relevant part that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such decree as justice and equity may require.: The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to c. 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority”. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 ,679 (1953) and cases cited. The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id . Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987). In this review, the Court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. At 679; Marr v. Back Bay Architectural Comm’n, 32 Mass. App. Ct. 962 , 963 (1992).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-558 (1954). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996). However, in limited circumstances, the Trial Court may substitute its judgment for that of the board’s where “justice and equity” require. G. L. c. 40A, § 17. Therefore, the court may overturn the board’s decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. Of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); accord MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. Of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).

In the present case, the Building Inspector has determined and ruled that many of the uses being carried on by Plaintiff on the property are not in accord with those allowed by a 1955 by-law which was the one in effect when title in the property came into the Pollock family. He therefore concluded that those uses are not “pre-existing non-conforming”, as claimed by the Plaintiffs, and issued the “Cease and Desist Order” at issue in this case. A review of the statute and of the 1955 Middleton zoning by-law in effect when the Pollocks purchased the property is therefore called for.

The first sentence of G. L. c. 40A, § 6 (Section 6) states, in pertinent part,, “[a] zoning.... by-law shall not apply to ...uses lawfully in existence or lawfully begun...before the first publication of notice of the public hearing on such...by-law required by section five, but shall apply to any change or substantial extension of such use...” [A] nonconforming use is one which is lawfully carried on at the time a provision of a zoning code or an amendment to the zoning code is adopted which prohibits that use.” Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 529, further appellate review denied 407 Mass. 1103 (1990).

Section 6 “prescribes the minimum of tolerance that must be accorded to nonconforming uses...” Nichols v. Board of Zoning Appeal of Cambridge, 26 Mass. App. Ct. 631 , 633 (1988), quoting Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207 , 209 (1946). See also Berliner v. Feldman, 363 Mass. 767 , 770 (1973). “Unless a municipality has specifically authorized...change or substantial extension of a [nonconforming] use [], such modifications may not be permitted.” M. Bobrowski, Handbook of Massachusetts Land Use and Planning Law § 6.3.1 (1993). See also generally Blasco v. Board of Appeals of Winchendon, 31 Mass. App. Ct. 32 (1991).

Section IX of the Middleton zoning by-law in effect when Plaintiff purchased the property contains language similar to that contained in Section 6, providing in pertinent part that

“Any lawful building or structure, or use of a building, structure or land, existing at the time this By-law or any amendment thereto takes effect may be continued although not conforming to the provisions thereof, but a non-conforming use which has been abandoned for more than two years shall not be resumed.

The non-use of any non-conforming land used for agriculture, horticulture or floriculture shall not constitute abandonment under this By-law where such non-use has existed for less that five years.”

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The purpose of G. L. c.40A, § 6 is to protect uses lawfully in existence when the by-law is enacted, in this instance, in 1955. The Pollock family did not purchase the subject property until 1965, and did not even begin to use it until 1963. Prior to 1965, when the Pollocks first purchased the property, and indeed prior to 1963 when they rented it and began to use it, there is no evidence to support many of the various uses to which they put the property after that time. In other words, the Fraziers conducted a sawmill business on at least a portion of the property while they owned it. Therefore, use of the property as a saw mill is apparently protected. However, after the sale to Pollock in 1965, there is no evidence to show that they continued that use of the property. Any uses not allowed under the 1955 by-law and not in existence in 1955 are prohibited. The fact that the Plaintiffs used the property for many commercial uses after they rented or purchased it does not make such uses pre-existing or non-conforming, as claimed by Plaintiff.

The Cease and Desist Order at issue in this case concerns the portion of Plaintiff’s property on the left side of Lake Street, the road which bisects the property. The left side was zoned residential at the time of Plaintiff’s first usage in 1963. There were thirteen (13) uses permitted as of right in 1963, all of them relating to residential, religious, educational, civic, recreational, agricultural, or horticultural uses, along with accessory uses related thereto. The accessory uses allowed in residentially zoned land as referred to in Section IV-2 of the by-law included private garages for residences, private greenhouses or similar structures for domestic use or storage, the keeping of animals or livestock for personal enjoyment, a limited removal of sod, sand, or gravel, limited use as a boarding house, and limited home occupations. Clearly, these uses were to be in conjunction with residential use of the property and did not include the use and storage of school buses, trailers or containers in residential structures.

Section III-3 of the 1955 zoning ordinance then in effect permitted fourteen (14) uses as of right in a business district, here, land to the right of Lake Street plus a thirty foot wide strip of land within the residential district. Among the uses permitted were many already permitted in a residential district, hotels and motels, retail stores, showrooms for plumbing and similar businesses, salesrooms for boats and trailers but without repair services, automobile salesrooms without repair services, restaurants and other food service establishments, service establishments dealing directly with the public (such as barber shops, etc.), shops for occupations such as electricians and painters, business or professional offices, signs, and/or various accessory uses related to such uses. Light manufacturing is also allowed, but on a limited basis. It is obvious that none of these “as of right” permitted uses allow for the storage of school buses, leased trailers for waste and equipment, or roll-off containers.

As is the case with most new or amended zoning by-laws, the 1955 Middleton Zoning Ordinance, in Section IX, provided that any lawful building or use existing at the time of adoption could be continued although not conforming with the new law, but that a non-conforming use which had been abandoned for more than two years could not be resumed. Agricultural, horticultural and floricultural uses could be continued unless abandoned for five years. In the present case, the evidence is clear that the uses carried out by Plaintiffs were not protected uses because they were not being carried on when the by-law was adopted, or even when the Pollocks came to the property in 1963. The former use of the property as a saw-mill by the Fraziers would not justify use of the property for the uses to which the Plaintiffs put it, namely, for the storage of school buses, heavy equipment, pipes, trailers, etc.

As noted supra, we must discern where on the property the uses by Plaintiffs took place; i.e., whether they used the residential portion of the property for their businesses. [Note 2] In the early 1980s, the property to the left of Lake Street was rezoned to a business district, thereby putting all of the property into a business district. Storage of buses, trailers or containers is not allowed as of right is such a district. The land owner would need either site plan approval or a variance or special permit to use it in that manner. Two applications for site plan approval were filed, one for the storage of towed automobiles, which was denied in 1990, and one to allow construction of a building to be used for the sale of construction equipment on the property, which was granted in 1996. Plaintiffs have sought no other special permits or approvals.

The standards for determining whether or not a use of property is permissible as a non-conforming use have been set forth in several cases. One of the first, and perhaps the one most cited, was Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966). The so-called Chuckran test was further refined and restated in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). In Powers, the Supreme Judicial Court stated that “[t]he first test is whether the present use reflects the nature and use prevailing when the zoning by-law took effect....The second test is whether there is a difference in quality or character, as well as degree, of the present use...The third test is whether the current use is different in kind in its effect on the neighborhood.” The Powers case also indicates that a proposed modification of a non-conforming use which trips any of these tests will constitute a change of use. The burden of proving that property owners are entitled to con-conforming use protection is on the property owners themselves.

The first Powers test asks whether the present use reflects the nature and use prevailing when the by-law took effect in 1955. Clearly it does not. The operation of a saw mill on the property is a far cry from the present use for sale and storage of heavy equipment such as school buses, trailers, containers, and the like, especially since such uses often take place late at night or early in the morning and entail much noise.

The second Powers test asks whether there is a difference in the quality or character, as well as the degree of use. Clearly, the answer is “yes” for basically the same reasons set forth in the preceding paragraph. The saw mill operation, while possibly loud at certain times, was mostly passive and seldom operated before or after dark.

For the same reason, the Pollock’s use of the property did not pass the third Powers test in that the use carried on by Plaintiff was very different in kind in its effect on the neighborhood. What at one time was a relatively quiet and geographically small use (there was only one sawmill even though lumber and logs were more widely spread out), is now a parcel of land cluttered with used farm equipment, school buses, trailers, and other supplies.

The Court is not unmindful of the fact that the Pollock property is located on a fairly busy state highway (Route 114) and that it is a thoroughfare connecting the northern end of Essex County with the County seat of Salem and the numerous retail outlets at the southern end of the County. Nevertheless, the land abutting the Pollock property is zoned residential and several homes have been built on it in recent years. Pollock can continue to use the property in the manner allowed by the by-law in effect in 1955, but they can only “modify” or seek to expand that use by obtaining site plan approval or other zoning relief from the appropriate Town boards and officials. The uses they have been making of the property simply do not pass the Powers test.

The “cease and desist” order entered by the Building Commissioner is hereby affirmed, as is the decision of the Zoning Board of Appeals refusing to overturn it.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: May 9, 2011


[Note 1] As will be seen later, it will become important to know exactly where on the Pollock/Frazier lot the sawmill was located on the property.

[Note 2] As noted above, they are permitted by the zoning by-law to use no more than a thirty foot wide strip of the residentially zoned parcel for business purposes.