Home DERBY REFINING COMPANY, and BELCHER NEW ENGLAND, INC. vs. CITY OF CHELSEA and FRANK S. MONDANO, as he is the Inspector of Buildings and Building Commissioner in and for the City of Chelsea.

MISC 123002

June 7, 1988

Suffolk, ss.

SULLIVAN, C. J.

DECISION

This Court again is faced with a decision as to the correct interpretation of the Chelsea Zoning Ordinance as most recently amended in June of 1986, and also as to the validity thereof. [Note 1] In the present action, the plaintiffs, Derby Refining Co. ("Derby") and Belcher New England, Inc. ("Belcher"), bring this complaint pursuant to the provisions of G.L. c. 240, §14A for a: "determination as to the validity of a (Chelsea) municipal ordinance . . . passed or adopted under the provisions of chapter forty A . . . which purports to restrict or limit the present or future use, enjoyment, improvement or development of (the plaintiff Derby's) . . . land, or any part thereof, or of present or future structures thereon, including alterations or repairs, . . ." as well as "for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land . . ." as a petroleum products storage terminal. The defendants in the complaint are the City of Chelsea and Frank S. Mondano as he is the Inspector of Buildings and Building Commissioner in and for the City of Chelsea (collectively referred to herein as the "City" except where the context otherwise requires). The land in question is a parcel now known as and numbered 99 Marginal Street in said Chelsea, in the County of Suffolk, situated on the bank of the Chelsea Creek. There also is an additional parcel of vacant land on the opposite side of Marginal Street.

The nature of the controversy between the parties may be summarized as follows: Texaco Refining and Marketing, Inc. ("Texaco") determined in 1983 that it was economically preferable to share terminal facilities with Gulf Oil Company than to operate its own tank farm and placed its Marginal Street property on the market. The property ultimately was sold, in January of 1986, to the plaintiff Derby who thereafter leased it to Belcher. During this time frame the City of Chelsea adopted a moratorium on the issuance of building permits and certificates of occupancy in the "Industrial Waterfront" District in which the premises are located and in June of 1986, the City adopted a revision to the zoning ordinance which placed the locus in a new district entitled "Waterfront." Subsequently, Belcher sought to use 99 Marginal Street as a marine terminal for the storage of liquid asphalt in several of the Texaco tanks as adapted to heat the asphalt to the degree necessary to keep it in a liquid state for distribution to customers. The City first issued a certificate of occupancy, then rescinded its issuance and ultimately refused Belcher permission, and this law suit followed. Pursuant to an injunction issued by this Court, affirmed by the Supreme Judicial Court with a requirement as to the filing of a bond, the facility has opened and is now in operation. All of these facts appear in much greater detail hereinafter in this decision. They present several legal issues as follows:

(a) Was the facility at 99 Marginal Street being used as a "tank farm (oil & gas)" on the effective date of the new Chelsea Zoning Ordinance therefore qualifying for the protections afforded lawfully pre-existing uses? This issue involves a two-pronged inquiry as to whether Texaco had abandoned or discontinued its use prior to the effective date of the 1986 zoning revision and, if not, whether the plaintiff's storage and distribution of asphalt falls within the prior zoning use classification of an "oil and gasoline tank farm".

(b) A facet of the questions posed in paragraph (a) is a determination as to when the non-conforming use of the premises commenced, and this also involves the determination as to whether Belcher's use of the terminal is the same use as that made by its predecessor in title, Texaco.

(c) Part of the overall issue as to whether there has been a change of use, includes a consideration of the questions as to whether environmental factors may properly be considered, and whether there is a difference in the health risks posed by the petroleum fuels stored by Texaco and the petroleum asphalt stored by Belcher which leads to a conclusion that the plaintiff's use is "different in kind in its effect on the neighborhood." Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966).

(d) Finally there is the question as to whether the area which comprises the new Waterfront District is now properly zoned. If it is not, the question remains as to whether Belcher's use is a permitted use in the old Industrial Waterfront District and the preceding non-conforming inquiries then become immaterial.

I do not reach the last question as to the validity of the Waterfront District classification, because I find and rule that Texaco had not abandoned the use of the premises as a tank farm, that the language of the zoning ordinance properly is interpreted to refer to petroleum products generically, that Belcher's use is the same use as that made by Texaco, and that any change in environmental consequences is not sufficient to require a different result.

So far as the validity of the new zoning ordinance is concerned as it relates to the creation of a Waterfront District, the fact that its proponents agree that at least 44% of the District is used for activities no longer permitted by the zoning ordinance creates a serious problem as to its validity. Initially, of course, in the adoption of amendments to the zoning ordinance there were legislative judgments to be made which are entitled to great weight. E. g., Crall v. Leominster, 362 Mass. 95 , 101 and n. 4 (1972). One element which the legislative branch, here the Board of Aldermen, had to weigh was the desirability of upgrading the area. On the other hand a continuation of the commercial and maritime uses so important to the local economy and so prevalent in the District also had to be evaluated. The ultimate question for decision on this issue is whether a zoning ordinance or by-law can be enacted or subsequently amended which does not adequately reflect existing uses and imposes an artificial strait jacket on the owners. See Schertzer v. Somerville, 345 Mass. 747 (1963); Massachusetts Broken Stone Co. v. Town of Weston, 346 Mass. 657 (1964) and Barney & Carey Co. v. Town of Milton, 324 Mass. 440 (1949), as to the viability of proposals radically to change the uses along Chelsea Creek. [Note 2] It is unnecessary to reach this latter question, however, in the present proceeding as the plaintiffs are entitled to prevail on the other questions posed above, and the ordinance need not be impacted in this proceeding.

The path of this litigation has not gone smoothly. After the Supreme Judicial Court denied the defendants' petition to vacate the injunction, a hearing was held to determine that a bond in the amount of $50,000.00 was sufficient to secure the City against any damages arising from the grant of injunctive relief. Ultimately, the plaintiff filed a complaint for contempt to compel the issuance of the building permit required by the injunction, and an order issued to this effect. As the litigation reached its conclusion, the Board of Aldermen decided to hold a hearing pursuant to G.L. c. 148, §13 relative to the revocation of the existing license for the storage of petroleum products. The hearing initially was restrained by this Court and affirmed on appeal by a single Justice of the Appeals Court (Perretta, J.). After a hearing relative to contempt, this Court declined to anticipate the action by the local licensing authority, the Board of Aldermen.

So far as the case proper is concerned, the trial was held on nine days: July 28, 29, 30 and 31, 1987, August 12, 1987, November 5 and 6, 1987 and on December 30 and 31, 1987. A stenographer was appointed to record and transcribe each of these proceedings. Fifty-seven exhibits were introduced into evidence, some of which contain multiple parts. Fifteen witnesses testified. The plaintiffs called nine witnesses: the defendant Frank S. Mondano, Inspector of Buildings for Chelsea from 1952 to present; William C. Welch , Supervisor for Texaco Refining from 1954 to present and former Acting Terminal Manager for Texaco at the 99 Marginal Street facility; Chester Zaksheski , member of the Chelsea Board of Health and its Chairman during 1987; Frederick F. Goebel, Vice President of Operations and Engineering for Belcher New England, Inc. and Belcher New York, Inc.; Herbert C. Fothergill, Chelsea Fire Chief from 1967 to 1988; Roger C. Samia, plant superintendent for Belcher New England at the 99 Marginal Street facility; James D. Okun, chief chemist and environmental toxicologist with Goldberg-Zaino & Associates; Gregory McBride, senior technical specialist for Goldberg-Zaino & Associates and Francis W. Weir, a toxicologist with the Health Science Center of the University of Texas. The defendants called six witnesses: James Bishop, a resident of 96 Marginal Street, who has lived across Marginal Street from the facility for fifteen years and who is a senior technician in toxic gases for M.I.T. in micro-electronic systems; Edward Lojko, a long-time resident of 92 Marginal Street, also across the street from the locus; Guia Santagate, a sixteen year member of the Chelsea Board of Assessors and its chairman; Carol J. Thomas, a planning consultant and President of Thomas Planning Services; David Gordon, a consulting engineer and President of David Gordon Associates and Edmund A. Crouch, a physicist who performs environmental risk assessment for Meta Systems, Inc. The defendants sought a directed verdict at the close of the plaintiffs' case which was denied in open court. A view was taken of the subject premises, the Waterfront District and the adjacent Residential and Industrial Districts, in the presence of counsel on August 13, 1987, both from the shore and by tugboat from the waters of the Creek itself.

On all the evidence I find and rule as follows:

1. The plaintiff Derby meets the statutory qualification for an action pursuant to G.L. c. 240, §14A, of a fee simple owner by virtue of the deed to it from Texaco Refining and Marketing, Inc., dated January 15, 1986 and recorded with the Suffolk County Registry of Deeds in Book 12214, Page 125 (Exhibit No. 5).

2. Derby has leased the facility to its affiliated corporation, Belcher, by instrument dated January 15, 1986 (Exhibit No. 6).

3. The locus comprises both registered and unregistered land, title to which is said to have been acquired by Texaco or its predecessor companies in the 1920's. The facility was upgraded about thirty years ago with the seven large storage tanks now on the premises being installed at that time by Texaco; the reconstruction also included installation of the dock, breasting dolphins and a truck loading ramp. The tanks were used for the storage of a maximum of 11,000,000 gallons of various types of petroleum fuels including three grades of gasoline, ship kerosene, two grades of aviation fuel, and at least until the 1960's, No. 2 fuel which is similar to diesel fuel. The facility is a "deep water terminal" which can accommodate ocean-going tankers or barges which dock at the breasting dolphins, hook onto the permanent system of piping located at the dock and pump their cargoes directly into the proper storage tank by the ship's own on-board systems. These fuels would then be pumped underground from the storage tank to a loading rack for direct delivery to trucks by means of a second system of pipes with downspouts. A vapor recovery system was installed by Texaco around 1975 to control emissions during truck loading. The facility also includes two brick buildings; one housed Texaco's offices and the other the physical plant including boilers, equipment storage and general warehouse uses. The garage on the opposite side of Marginal Street during Texaco's tenure housed and serviced up to fifteen delivery trucks. These trucks were manned by a crew of Texaco drivers and parked, when not in use, on the tank side of the facility in the area of the loading rack.

4. The neighborhood of the Texaco facility was graphically described in the opinion of Chief Justice Greaney in Mahoney v. City of Chelsea, 20 Mass. App. Ct. 91 , 92 (1985). The City contends that there have been several changes since the earlier decision which bear on the question of the validity of the zoning, and indeed it is true that in a part of the district located between the Tobin Bridge and the Meridian Street, or McArdle Bridge, new condominiums are being constructed on the site of a former shipyard. However, just to the east of the Tobin Bridge is a tank farm once operated by Metropolitan Oil and now known as the "Ultramar" facility. To the easterly side of the McArdle Bridge is situated the commercial dock of Eastern Minerals, involved in the litigation referred to in footnote 1. Eastern Minerals has imported bulk salt cargoes by ship to its dock for distribution to public purchasers for road maintenance purposes since the 1950's. Adjacent to this salt facility lies the property of Quincy Oi1, formerly used for the bulk storage of petroleum products, but now vacant since the removal of the storage tanks. Belcher's facility abuts the Quincy Oil property on the east and is in turn adjacent to a former commercial shipyard now in disrepair which is still used as a marine repair yard which also provides dock and bulkhead services.

5. The next property on Marginal Street consists of old docks with rotted pilings where formerly a marina had been proposed, but was never brought to fruition, because the Coast Guard opposes the use of Chelsea Creek for small pleasure craft. There was evidence in the current trial that the size of tankers using the Creek has increased and that it is a designated port. Cabot Paint and Stain previously had a facility on Marginal Street, but this has been closed. Still in operation, however, is a bulk petroleum storage facility and dock currently operated by Northeast Petroleum which was formerly the Jenney and Citgo property. At this point, Marginal Street meets Eastern Avenue where there are at least two other bulk petroleum storage facilities or tank farms owned or operated by Amoco and Gulf/Texaco. There also are commercial uses along the opposite or northerly side of Marginal Street including a processed fish distributor, a produce distributor, a repair garage, a wiping cloth distributor and an importer and distributor of hides. An exception to these uses is found opposite the entrance to the Derby facility where three historic homes known locally as the "Captain's Houses" were built during the 19th century on a rise overlooking the Creek. A total of six of these residences were constructed to house retired sea captains, and the three which remain are currently being restored as private residences. The witnesses James Bishop and Edward Lojko each own and reside in a "Captain's House." On that same side of Marginal Street abutting the "Captain's Houses" is the former Texaco garage used to service and repair the delivery trucks. The terrain rises sharply from Marginal Street, and beyond the industrial uses begin the residential neighborhoods whose residents have objected to the uses made of the properties along the Creek. The shores of Chelsea Creek in Revere and East Boston accommodate similar commercial and industrial uses including the "tank farms" of Global Petroleum, Hess, Gibbs and Belcher. The waterborne traffic of the Creek is composed primarily of tankers, barges and tug boats with few pleasure craft although a marina has recently been established in East Boston just east of the McArdle Bridge.

6. The Chelsea Zoning Ordinance in effect when Derby took title to the premises from Texaco in January of 1986 provided for an Industrial Waterfront District which included the entire waterfront area from a point somewhat westerly of the Tobin Bridge to the Boston and Maine Railroad and was generally bounded by Chelsea Creek, Meridian Street and Eastern Avenue. This was an appropriate designation and accurately reflected the uses made therein. The zoning ordinance then in effect is Exhibit No. 1 and the zoning map, Exhibit No. 2. Permitted uses in an Industrial Waterfront District as set forth in Section 4.1.4(3) included "oil and gas tank farms including distributive facilities." The table of permitted uses in the various zoning districts describes the use somewhat differently under the category of "wholesale and distribution uses": "3. Tank farms (oil and gas)" and it is shown on the table as being permitted only in the Industrial Waterfront District.

7. The first publication of the notice of the public hearing to be held March 31, 1986 on "proposed zoning amendments" appeared in the Chelsea Record on March 14, 1986 (Exhibit No. 20) with subsequent notices on April 18 for a meeting May 5, 1986 (Exhibit No. 21), and a publication on May 23, 1986 for a June 3, 1986 public hearing (Exhibit No. 22). Under the zoning ordinance as adopted pursuant to such notices, the permitted uses in the new Waterfront District (no longer an Industrial Waterfront District) were radically changed. The ordinance as so amended recites in the new Section 4.7. "Waterfront District" that: "The purpose of the Waterfront District (W) is to provide an area for uses which are water related and/or which benefit from the proximity to the airport or the harbor, and to encourage public access to the waterfront." (Exhibit No. 3). It appears that all uses in this new district require site plan approval or a special permit which may give rise to SCIT, Inc., [Note 3] oriented problems which were neither raised nor argued in the present proceedings. Those principal uses subject to the requirement for site plan approval include the following: multi-family residences; hotels, motels, inns, and tourist homes; retail business or personal service establishments; fishing piers; yacht clubs, marinas, boat and accessory sales and services and boat rental establishments; research and development, including related offices; and professional, business and governmental offices. Restaurants, bars, ferries and excursion facilities are allowed under grant of a special permit.

8. The economics of the petroleum industry apparently dictated a cooperative agreement between Texaco and Gulf as to the use of the latter's facility on Eastern Avenue in Chelsea, and as a result, in 1983 Texaco, for its internal purposes, classified its Marginal Street terminal as "surplus" property. It put the property on the market for sale in the same way that it customarily disposed of other properties no longer needed in the operation of its business. Advertising in trade journals began and other petroleum suppliers were contacted to ascert a in their interest. As part of the process which Texaco referred to as "mothballing", first, the tanks were pumped down, a contractor then hired to clean them, feed lines were purged, filled with chemical preservative and sealed after removal and storage of the valves. In addition, the business office at the locus was closed and the contents were removed. Texaco continued to heat the building, however, and a security firm was hired to check periodically on the facility. A firm also was hired to install and monitor a "cathodic protection system" to preserve the steel of the empty tanks and a "for sale" sign was placed on the roof of the warehouse. A purchaser for the facility was found in Cumberland Farms, and a purchase and sale agreement was executed by the parties. A dispute thereafter arose and the proposed purchaser commenced an action in the federal district court relative to the return of its deposit. The ultimate outcome of this litigation is not in evidence, but Texaco began to advertise again in its efforts to sell the facility with Derby ultimately purchasing it as hereinbefore set forth.

9. Texaco at all times maintained its flammable storage licenses issued pursuant to the provisions of G.L. c. 148, §13 (Exhibit Nos. 7 and 8) and annually applied for and received such licenses. While the property was on the market, Texaco applied in 1985 to the Chelsea Board of Assessors for an abatement of the real estate taxes (Exhibit No. 37) and was granted for fiscal year 1985 only, a reduction of approximately 15% in both the total assessed value and the total tax.

10. After the purchase from Texaco was completed, Belcher commenced an internal assessment to determine the proper use to which the Marginal Street facility should be put. Concern had been expressed as to whether another major oil company which was virtually a sole source of asphalt for the Boston area would present a competition problem if Belcher entered this field, but ultimately this was decided in the negative and a series of interoffice memoranda (Exhibit Nos. 14, 15, 16 and 17) reflect the various factors taken into account by Belcher in making its business decision.

11. Following the purchase from Texaco, Derby finalized its plans to use the facility for the storage of asphalt and its distribution. Work began in the summer of 1986 to prepare the facility. In order to put the facility back on an active status and to prepare it for the asphalt, a hot oil heating system was installed to heat the tanks and associated pipes so that the asphalt could be maintained in a liquid state for pumping. The exteriors of the three tanks to be used for asphalt storage also were wrapped with insulation to prevent heat loss. Scales were added to the truck loading dock, and various modifications were made in pipes, valves and tanks (Exhibit No. 16). At the request of the Chelsea Fire Chief, Derby removed the "foam guns" which Texaco had installed at the tops of the tanks for fire prevention as the introduction of moisture into the stored asphalt might cause excess pressure and the possibility of an explosion. The Fire Chief testified at the trial, however, that storage of asphalt was a very safe process and that he had no qualms about it.

12. In September of 1986 Belcher applied for a certificate of occupancy (Exhibit No. 30) for the Marginal Street facility, and the office of the building inspector made a determination that the certificate should issue. The Building Inspector then had second thoughts relating to the storage of asphalt and asphalt vapors (Exhibit No. 10) and he revoked his approval of the portion of the certificate of occupancy which related to asphalt storage "pending the satisfactory documentation regarding the emission of objectionable vapors." Belcher continued to press for full approval, but by early February decided to and did withdraw the application (Exhibit No. 32). Both the Deputy Fire Chief and the Building Inspector issued stop orders against the preparation of the premises for asphalt storage (Exhibit Nos. 11 and 12). Appeals were filed by the plaintiff in this action from these two stop orders with the State Building Code Appeals Board. Later in March of 1987, Belcher again applied for a certificate of occupancy (Exhibit No. 33) which was denied (Exhibit No. 13). At the trial, evidence pertaining to asphalt emissions was allowed only to the extent that it showed a difference in the use made by Texaco and that by Belcher. There was testimony from expert witnesses for both the plaintiffs and the defendant as to the environmental health risks reflected in the City's laboratory analysis of ambient air samples collected at various sites in Chelsea. By use of a testing technique which generates a graph known as a "fingerpri nt", the City's expert concluded that significant levels of asphalt fumes or vapors were present at all three sites. The plaintiff's expert testified that the National Institute of Occupational Safety and Health ("NIOSH) classifies asphalt fumes, like dust, as "nuisance particulates". The parties differed on the health risks assessed to the asphalt vapors with the plaintiff's witness testifying that the increased risk of cancer was only six to seven cases per million over a lifetime of exposure and the City's witness testifying that there might be an increased risk of cancer of three in every 1,000 persons, again for a lifetime of exposure. The lifetime of risk is an artificial standard for a theoretical person who never leaves home from birth to death.

13. At the request of the Chelsea Board of Aldermen, the Department of Environmental Quality Engineering ("DEQE") conducted a field investigation which led to the issuance of two notices of non-compliance under G.L. c. 111, §§142A-H and 310 CMR 7.00. The notices were dated August 14, 1987 and October 23, 1987 (Exhibit No. 50). Accordingly, the DEQE has required the plaintiff to submit a proposal to control detectable odors.

14. The Division of Air Quality Control of DEQE publishes annual sampling results for various sites in the Commonwealth. The 1985 edition of these results entitled "Air Quality Data Report" (Exhibit No. 45) contains data from two locations in Chelsea; ten samples were run for Chestnut Street at 6th Street and thirty-six were run for Powderhorn Hill. The standard for total suspended particulates ("TSPs") set by DEQE is 75 ug/m3 (micrograms per cubic meter) annual average and 250 ug/m3 over a twenty-four hour sampling as was taken by the City's expert. The highest TSP reading from the City's twenty-four hour samplings was 140 ug/m3 measured at the Lojko residence.

15. The Division of Air Quality Control maintains files on particular emissions sources and monitors the results of emissions controls for such sources. The Division's file for Texaco's operations at 99 Marginal Street, including boilers and the vapor recovery system (Exhibit No. 56), calculated the annual loss of volatile organic compounds to be 214 tons for the gasoline and diesel fuels stored during 1981.

The first question to be determined is whether when the new zoning ordinance was adopted, or for our purposes, pursuant to the statute, G.L. c. 40A , §§5 and 6, when the first publication of a planning board hearing was made, the property was being used as a tank farm. The provisions of G.L. c. 40A , §6 as to the abandonment or discontinuance of non-conforming uses or structures has been inappropriately referred to as bearing on this initial question. The real question first posed by the present factual situation is the use of the property at the time immediately prior to the change in zoning, and it seems clear that the use was as a tank farm. Clearly there was no intent on Texaco's part to abandon the property for that purpose. It was anxious to sell the facility and to realize the highest possible price therefor which would appear to be the use which had been made of the locus for many years. When the premises were purchased by Derby, it clearly was acquired for one of the then permitted uses. It was only after the adoption of the new zoning ordinance that the property became non-conforming within the meaning of G.L. c. 40A, §6. There is a similar provision in the Chelsea Zoning Ordinance in Section 6.2.1.3, and it has the same focus as the enabling act. It provides that "if a non­conforming use is discontinued or is abandoned for a period of two (2) years . . . it shall not be reestablished . . . ." The two years referred to in the Ordinance only began to run from the effective date of the amendment which rendered the prior use non-conforming. Accordingly, the use as a tank farm could not have been lost by abandonment or discontinuation when the familiar uses were rendered non-conforming by the zoning amendment of June 1986.

The fact that the use did not become non-conforming until the enactment of the new zoning ordinance distinguishes this scenario from that in Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 669 (1987). The objective standard found by the Appeals Court to have been mandated by the legislature in the adoption of St. 1975, c. 808 applies to the period after the use in question becomes non-conforming. As to the appropriate criteria to determine whether the permitted use was still active at the time of the adoption of the new zoning, it would seem to be the same subjective standard previously phrased in terms of abandonment. Illustrative of this approach is Morin v. Board of Appeals of Leominster, 352 Mass. 620 (1967) where use of the premises for a printing shop was suspended while the owner-operator was in the military service. This analytically is very close to Texaco's approach to disposal of the locus. This situation is distinguishable from that in Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App. Ct. 450 (1987) for the Red Inn of the decision was a well-known restaurant but had not been used as an inn. There is no question that Texaco had used the locus for the operation of a marine facility for the importation, storage and distribution of petroleum products. The maintenance and annual renewals of the necessary licenses and the abortive sale to Cumberland Farms, Inc. are illustrative of Texaco's attempt to maintain the integrity of the premises as a marine distributive facility in order to sell it for such use. In short, even if Texaco had no further use of the locus for its own corporate purposes, it did not intend to surrender such use. Since the use was permitted until after it was sold to Derby, no specific manifestation of such purpose was necessary. The application for abatement was an attempt, partially successful, to have the assessors recognize that Texaco no longer was operating the facility and, accordingly, sought a reduction in its tax burden. The abatement granted was only for one year, a municipal recognition of the temporary nature of the closing of the facility and its lack of revenue production.

This leads then to an inquiry as to whether the current use of the premises for the storage and distribution of asphalt constitutes a continuation of the prior use as an "oil and gas tank farm" or conversely is a "change or substantial extension of such use" or "a reconstruction, extension or structural change of such structure . . . any alteration of a structure" for "a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . ." as specified in G.L. c. 40A, §6. The Massachusetts Courts traditionally have applied a three-pronged test to determine whether the controverted use is protected. It was in Bridgewater v. Chuckran, 351 Mass. 20 (1966) that the test based on prior decisions was enunciated, and it has been frequently followed since: "(1) Whether the current use reflects the 'nature and purpose' of the use prevailing when the zoning by­law took effect . . . ; (2) Whether there is a difference in the quality or character, as well as the degree, of use . . .; (3) Whether the current use is 'different in kind in its effect on the neighborhood.'" Id. at 23; Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973). The plaintiffs argue as to the first prong of this test that the storage of asphalt is storage of a petroleum product and, as such, substantially similar to storage of petroleum fuels. The defendants conversely note that the use previously permitted was "oil and gas tank farm" and that asphalt, while a petroleum derivative, is neither oil nor gas. Viewed in another way, the question becomes an inquiry as to whether the phrase "oil and gas" as modifying the description of tank farms refers to petroleum-based products generically or whether it is narrowly focused on fuel oil and gasoline. The answer seems inescapable that it is the former, and indeed the Chelsea Building Inspector's Office has so interpreted this phrase in dealing with other operations along Chelsea Creek. Mr. Mondano testified that he interpreted "gas" as gasoline. As the trial testimony revealed, asphalt is present, as are the various gasolines and grades of fuel oil, in each barrel of crude oil: therefore, argue the plaintiffs, the nature of the use has not changed. Indeed the Building Department has so construed the storage of No. 2 oil at one of the other terminals, it being similar to asphalt in that it is necessary to heat No. 2 oil in order to pump it. Essentially the facts present a current use which is nearly identical in nature to that of Texaco: bulk deliveries by ocean-going vessels, bulk tank storage and wholesale distribution. Since delivery is no longer offered by the seller, the nature of the present use is, at least in this regard, narrower than it was during Texaco's management. In addition, asphalt sales are limited to the warmer months and so the operation involving at least the three asphalt tanks will be closed generally from mid-December to mid-April. The tank trucks are loaded differently, but this would seem to be immaterial. The comparison of past and present uses here presents the converse of those in Kreger v. Public Buildings Commission of Newton, 353 Mass. 622 (1968) where the product; fuel oil, remained but the sales thereof went from retail to wholesale. This, it was held, constituted a change in the kind of use although the physical use of the structures was unchanged. Id. at 627. Clearly, the change here from storage and the sale at wholesale of petroleum fuels to storage and the sale at wholesale of petroleum asphalt does not rise to the level of a use which is different in purpose nor even in nature when viewed in the context of the numerous cases on the subject. E.g., Cape Resort Hotels, Inc. v. Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (1982); Brady v. Westport, 348 Mass. 515 (1965); Hinves v. Commr. of Public Works of Fall River, 342 Mass. 54 (1961).

There are nevertheless certain differences between oil and gasoline on the one hand and asphalt on the other. For example, asphalt is used for a different purpose and is less volatile than petroleum fuels which emit vapors in even the coldest temperatures, whereas asphalt must be heated and, when heated, emits more noticeable odors. The evidence on comparative health risks was inconclusive.

After a comparison of the operation as engaged in by Texaco and now by Belcher and upon review of the Chuckran test, I find and rule that the Belcher operation passes the first and second prongs of the test. The difficulty lies in applying the third aspect as to the effect on the neighborhood. Clearly, many individuals consider the smell of asphalt to be less like a rose than that of gasoline, or other types of oil. This may only be because it is the current nemesis of the neighborhood while the Texaco problems have faded. In several ways, apart from the smell of the asphalt, the present operation should be considered less offensive to the neighborhood, for it is a seasonal business which is limited to the warmer months of the year, i.e., from mid-April to mid-December and, at least at present, is much less intensive than that of Texaco since only three of the seven storage tanks are in operation at the present time. The competition is geared to meet the challenge posed by Belcher's entry into the market, and the Esso operation in Everett may be one reason why use of the facility is not greater. Neighborhood objections may be another. The cases illustrate the difficulty in applying the test as to any particular operation and a determination as to whether it is a permissible continuation of a greater volume than the original protected activity, or whether there is a change in quality of character as well as in the degree of use. See, e.g., Board of Selectmen of Blackstone v. Tellestone, 4 Mass. App. Ct. 311 (1976); First Crestwood Corp. v. Building Inspector of Middleton, 3 Mass. App. Ct. 234 (1975); and Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 (1959). I have carefully considered the current use of the facility as compared to that of Texaco in order to determine whether it is the same use in the light of Chuckran, and I conclude that while a close question, it is.

On all the evidence I therefore find and rule that Texaco had used the premises for the permitted use of an oil and gasoline tank farm from sometime in the twenties; that this use had not been abandoned and was still the permitted use of the property at the time of the adoption of the amendment to the zoning ordinance in June of 1986; that the plaintiffs have the benefit of a non-conforming use of the property and have not abandoned or discontinued operations for the two year period commencing with the effective date of the ordinance which indeed has not as yet run; that the permitted use as set forth in the zoning ordinance prior to the recent amendment properly is construed as including all petroleum products or derivatives thereof in the phrase "oil and gas tank farms"; that asphalt is such a product; that while less intense than the use made by Texaco, the use by the plaintiffs is sufficiently similar to that of Texaco to be protected by the provisions of G.L. c. 40A, §6 and the comparable provisions of the Chelsea Zoning Ordinance; that even if not protected as a non-conforming use there is a serious question as to the validity of the rezoning of the strip along Chelsea Creek since the idealistic framing of the new ordinance is inconsistent with the actual use of the area and with the requirements of the Coast Guard, but that no definitive decision is made on the validity of the amendment to the zoning ordinance.

Judgment accordingly.


FOOTNOTES

[Note 1] For earlier litigation concerning the same area of Chelsea, See S.M.P. Trust v. City of Chelsea, Misc. 108703 (Sept. 7, 1984); aff'd sub. nom.; Mahoney v. City of Chelsea, 20 Mass. App. Ct. 91 (1985) and, more recently, City of Chelsea v. Eastern Minerals, Inc., Suff. Supr. C.A. No. 85-118 (April 15, 1988) heard in this Court by interdepartmental assignment.

[Note 2] In this context the Court notes a recent proposal by the Boston Redevelopment Authority to establish a "Maritime Economy Reserve" along the waterfront in Charlestown, East Boston and South Boston to preserve "maritime-dependent industrial uses perceived as threatened by "gentrification." There is also a state-level coastal zone management policy of similar import for "Designated Port Areas" which applies to Chelsea Creek. 301 CMR 20.99.

[Note 3] SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984).