MISC 124225

August 21, 1989

Barnstable, ss.




By Miscellaneous Case No. 124225 and 126436, [Note 1] Gallo Construction Co., Inc. ("Gallo") and P. A. Landers, Inc. [Note 2] ("Landers") (collectively referred to as "Plaintiffs") appeal two decisions of the Board of Appeals of the Town of Sandwich ("Board"), pursuant to G.L. c. 40A, §17. Miscellaneous Case No. 124225 is an appeal from a decision of the Board, dated July 16, 1987, affirming the Sandwich Building Inspector's ("Building Inspector") decision to permit Gallo to operate a rock crushing and processing plant at its site in Forestdale, Sandwich, Massachusetts ("Forestdale Pit"), but prohibiting Gallo's processing of materials shipped in from other sites in the absence of a special permit. Miscellaneous Case No. 126436 is an appeal from the Board's decision dated December 22, 1987, in which the Board denied Gallo's application for a special permit for the importation of stone, gravel and earth materials to the Forestdale Pit.

The Plaintiffs essentially contend that the importation of materials to the Forestdale Pit from sites located elsewhere is a prior, valid nonconforming use for which no special permit is required. Further, they assert that, even if a special permit is required, their importation of materials to the Forestdale Pit is not more substantially detrimental to the neighborhood than such prior nonconforming use, and hence, the Board should have granted their request for a special permit. The Third-Party Plaintiffs/Intervenors ("Abutters") [Note 3] are the owners of property either abutting, or located directly across from, the Forestdale Pit. They assert that the Board's decision allowing Gallo to continue its rock crushing and processing operation in an "R-2" Residential Zoning District violates Sections 2200 et seq., 2400 et seq. and 4200 et seq. of the Sandwich Zoning By-law ("By-law") (Exhibit No. 40) and is thus a use barred by both a special permit and a variance. They further argue that even if Gallo's importation of materials to the Forestdale Pit for purposes of carrying on such rock crushing and processing operation is allowed by special permit, Gallo has not proven its entitlement thereto under Section 2420 of the By-law.

Prior to trial, the Court granted Gallo's application for a preliminary injunction restraining the Town of Sandwich, the Board, its members, agents, servants and representatives, including the Building Inspector, from enforcing, or attempting to enforce, the Building Inspector's Cease and Desist Order of September 21, 1987, or a portion of the Board's decision dated July 15, 1987, both of which require Gallo to halt its importation of materials to the Forestdale Pit, and from taking any action which would interrupt, stop or otherwise interfere with Gallo's continued importation of the same. The court also denied a pre-trial motion brought by the Abutter, Hewlett Packard Company, seeking to enjoin the Board from hearing Gallo's application for a special permit.

The matter was heard on February 27 and 28, and March 1, 1989, at which times all testimony was recorded and later transcribed by a court-appointed reporter. At the commencement of day one of trial, the parties submitted a Stipulation of Agreed Facts, certain of which facts are included in the findings set forth below. Seventeen witnesses testified, sixty exhibits were accepted into evidence and five chalks were presented to assist the Court. All exhibits and chalks are incorporated herein for purposes of any appeal. The Court, in the presence of counsel, viewed the subject premises on April 26, 1989.

On all of the evidence, I find and rule as follows:

1. The Forestdale Pit is located on a 77.4 acre tract of land adjacent to Peters Pond in Forestdale. As shown on Map No. 60 of the maps filed with the Sandwich Assessor's Office ("Assessor's Map") (Exhibit No. 3), Parcels No. C-1, C-2, C-3, C-4, C-5 and C-6 comprise this tract of land.

2. The 6.38 acre parcel of land located adjacent to the Forestdale Pit ("Tilcon Parcel"), shown as Parcel No. C-2A on the Assessor's Map, was held by Gallo, in common ownership with the Forestdale Pit, from October 15, 1955 to September 20, 1968 as to approximately 5.0 acres, and until January 29, 1970 as to about 1.38 acres. Gallo has leased this parcel to Tilcon, Massachusetts, Inc. ("Tilcon") since November 1, 1986 (See Exhibit No. 19).

3. On July 1, 1956, Gallo leased the Forestdale Pit and the Tilcon Parcel to the Tri-City Concrete Company (See Exhibit No. 15).

4. By instrument dated October 15, 1973 (Exhibit No. 16), Gallo leased the Forestdale Pit to Campanella Corporation ("Campanella"). Thereafter, on January 31, 1975, Campanella assigned its interest thereunder to Simeone Corporation ("Simeone") (See Exhibit No. 17).

5. Following the expiration of the Campanella-Simeone Assignment, Gallo leased the Forestdale Pit to Ashland-Warren, Inc. ("Ashland-Warren"), said agreement being executed on March 1, 1978 (See Exhibit No. 18). Ashland-Warren's lease was terminated on November 1, 1986.

6. By instrument dated February 18, 1975, Simeone leased a portion of the Tilcon Parcel to Lawrence Ready-Mix Concrete Corporation (See Exhibit No. 28).

7. Until approximately 1973, Gallo operated a rock crushing and processing plant at the Forestdale Pit. Through this process, raw materials were supplied to a concrete batching plant on the adjacent Tilcon Parcel. In 1973, Gallo's rock crushing and processing operation was discontinued. Thereafter, in 1980, the equipment related to the rock crushing and processing plant was sold and removed from the Forestdale Pit.

8. In January of 1987, Gallo resumed its rock crushing and processing operation at the Forestdale Pit, and in conjunction therewith, installed a portable rock crusher. From this time until January of 1988, Gallo imported materials for use in its crushing and processing operation.

9. Since 1973, the Forestdale Pit, Tilcon Parcel and respective properties of the Abutters have all been situated in an "R-2" - Low Density Residential Zoning District, as described in Section 2140 of the By-law. Pursuant to the provisions of the By-law in effect as of October 14, 1970 ("1970 By-law") (Exhibit No. 41), however, the Forestdale Pit and Tilcon Parcel were located in a "GU" - General Use Zoning District, as described in Section 2140 of such By-law.

10. Whereas "rock crushing and processing" connotates the process by which earth materials are mechanically broken down to a finer physical composition, the mining and processing of sand and gravel involves the excavation, removal and dry screening of earth. Pursuant to Section 2310 of the By-laws in effect since 1970, the former activity thus constitutes a "manufacturing, processing use" which is prohibited in an "R-2" zoning district (or in the case of the 1970 By-law, in a "GU" zoning district) and the latter activity constitues an "earth removal use" which is, and has been, allowed in such zoning districts by special permit only.

11. On April 14, 1987, the Abutter, Cecil T. Fawkes, filed a complaint with the Building Inspector alleging that Gallo's operation of its rock crushing and processing plant in a residential zone violated the provisions of the By-law. Thereafter, the Building Inspector rendered a determination on the matter as follows:

It is my opinion that, [as] this gravel pit was established when it was allowed by [the By-law], it has become nonconforming . . . [as] I consider the crusher part of the operation of a gravel pit, . . . this was not an alteration, extension or change of a nonconforming use, as described in Section 2420 of the . . .By-law and [therefore] did not require a Special Permit or Variance. . .

On July 15, 1987, the Board affirmed that portion of the Building Inspector's decision allowing Gallo, in the absence of a special permit, to continue crushing and processing materials already existing in the Forestdale Pit.

12. On December 22, 1987, the Board issued a further decision denying Gallo's application for a special permit to import crushing and processing materials to the Forestdale Pit. In so deciding, the Board reasoned that Gallo's importation of materials amounted to a substantial increase in a nonconforming use which would be more detrimental to the residentially zoned neighborhood than the prior, nonconforming use.

13. The By-law provisions governing "non-conforming uses" are as follows:

Section 2400:

Non-Conforming Uses - The use of . . . land lawfully existing at the time of the enactment or subsequent amendment of this by-law may be continued although such . . . use does not conform with provisions of this by­law, subject to the following conditions and exceptions:

Section 2410:

A non-conforming use of . . . land which has been abandoned for a period [of] two years shall not thereafter be returned to such non-conforming use. A non-conforming use shall be considered abandoned when the premises has been vacant for two years, or when the characteristic equipment . . . of the . . . use have been removed from the premises and have not been replaced by similar equipment, whichever shall first occur.

Section 2420:

ALTERATION, EXTENSION, CHANGE. No change, extension or alteration of a non-conforming use of . . . land may be made except upon the issuance of a special permit for such changes, extensions or alterations. Such a special permit may be granted only if all [of] the following findings are made:

(1) All new parking and new construction are located not closer to side lines and rear lines than twice the setback distance required for conforming structures in the same district.

(2) Only those parcels of land are used as were so employed at the time the use was made non­conforming.

(3) All new parking is substantially screened from abutters and from streets.

(4) Such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood.

The duty of the Court in reviewing an appeal brought pursuant to G.L. c. 40A, §17 is to hear the matter de novo, render independent findings of fact and affirm the decision of the Board if it is found to rest on legally tenable grounds and is not unreasonable, whimsical, arbitrary or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). The Court may not substitute its judgment for that of the Board, Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969); Subaru at 486-488; Garvey at 856, as its review is limited to the validity of the Board's action in granting or denying the special permit. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). Further, where nonconforming uses are at issue, the claimant thereof bears the burden of proving that its present use of the land has not changed from its prior use and that the same has not been abandoned. Town of Bridgewater v. Chuckran, 351 Mass. 20 , 24 (1966); Burlington Sand and Gravel, Inc. v. Town of Harvard, 26 Mass. App. Ct. 436 , 437 (1988). "Abandonment" is established by proof of an intent to abandon the nonconforming use and voluntary conduct sufficient to imply such an intent. Pioneer Insulation Modernizing Corp. v. City of Lynn, 331 Mass. 560 , 565 (1954); Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 , 685-686 (1959); Cape Resort Hotels, Inc. v. Alcohol Licensing Board of Falmouth, 385 Mass. 205 , 220-221 (1982); Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 668 (1987). In the instant proceedings, I find that Gallo's operation of the rock crushing and processing plant began as a valid, nonconforming use at the Forestdale Pit, but was effectively abandoned following a fourteen year hiatus in such use. I thus rule that, in the absence of the Board's issuance o a special permit, such nonconforming use could not have been lawfully resumed, and accordingly, annul that portion of the Board's decision authorizing Gallo's revival of such use. In so holding, I further rule that the Board's decision denying Gallo's application for a special permit to import earth materials to the Forestdale Pit for use in the rock crusher must be affirmed.

It is apparent from the foregoing facts that the Board's decision permitting Gallo's rock crushing and processing operation at the Forestdale Pit, even in the absence of a special permit, is prefaced on the Board's belief that the rock crushing process is one and the same with the mining and processing of sand and gravel. Insofar as the aforementioned facts reveal that the two activities are separate and distinct, the Board's reasoning is misplaced. Accordingly, I find that Gallo's continued mining and processing of sand and gravel from 1973 to 1987 does not preclude a determination that the rock crushing and processing operation was abandoned during this fourteen year span. Moreover, Gallo's actions with respect to such activity during this time clearly rise to a level of abandonment, as set forth in Section 2410 of the By-law. Specifically, the facts noted herein establish that "the characteristic equipment . . . of the . . . use" (i.e., the rock crusher) was voluntarily removed from the Forestdale Pit in 1980 and was not replaced until 1987, a period well in excess of the two year span required to establish abandonment.

In consideration of the foregoing, I rule in summary that the Board exceeded its authority in allowing Gallo to resume its rock crushing and processing operation at the Forestdale Pit after such use had been effectively abandoned by Gallo at least seven years prior thereto, and accordingly, annul its decision dated July 15, 1987. In so ruling, I affirm the Board's decision of December 22, 1987 wherein it properly denied Gallo's application for a special permit to import earth materials to the Forestdale Pit for use in connection with the subject rock crusher.

Judgment accordingly.


[Note 1] Miscellaneous Cases No. 124225 and 126436 were consolidated for trial on February 23, 1988.

[Note 2] On July 14, 1988, Gallo conveyed the Forestdale Pit to P. A. Landers, Inc. (See Exhibit No. 14). Accordingly, on February 27, 1989, Landers was joined as a Plaintiff in these proceedings.

[Note 3] Hewlett Packard Company, Cecil T. Fawkes, Donald E. Shackleton and Priscilla R. Murphy (collectively referred to as Abutters") were allowed to intervene in Miscellaneous Case No. 124225 on July 26, 1987 and in Miscellaneous Case No. 126436 on February 2, 1988.