MISC 128797

August 9, 1989

Plymouth, ss.



The unprecedented growth in real estate development in Massachusetts during the later years of this decade has resulted in unusual ancillary legal problems. In many instances development has occurred in areas where building in the past has been retarded due to a paucity of services, and as a consequence in towns where town water is limited or where connections thereto have been barred (see Molla v. Town of Franklin et al, Land Court Miscellaneous Case No. 129682) a well digger has been much in demand. The plaintiff is the proprietor of a well digging operation, and his success propelled by market conditions is the root of this litigation.

Wayne Williams, the plaintiff, sought a building permit from the Middleborough building inspector to enlarge the office now within a quonset hut on his premises situated at 228 Wareham Street in Middleborough in the County of Plymouth and to add a garage for repairs to his vehicles, but he was advised that permission was required from the defendant Board of Appeals (the "ZBA") pursuant to the provisions of G.L. c. 40A, §§6 and 9. The ZBA after hearing the matter on three different nights denied the petition (Exhibit No. 6), and this appeal pursuant to G.L. c. 40A, §17 followed. During the pre-trial conference the Court was made aware by counsel of a letter from the Building Inspector, pursuant to a directive from the ZBA, that the parcel he brought "back to its original status in 1958." By agreement and with allowance by the Court, the plaintiff amended his complaint to include a count seeking a declaratory judgment pursuant to the provisions of the G.L. c. 240, §14A as to the extent of the applicability of the Middleborough Zoning by-law (Exhibit No. 2).

A trial was held at the Land Court on May 1 and 2, 1989 at which a stenographer was appointed to record and transcribe the testimony. Witnesses included the plaintiff, Frank E. Nudd, a remarkable octogenarian, former well digger, fellow pilot, and friend of a former owner of the property, William Getraitis, the Inspector of Buildings for the defendant Town, and several neighbors: Roseanne Maxim, Thomas Nelson and Lawrence Gaffney. Thirty exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

The parties have entered into the following stipulation of facts (Exhibit No. 1) and I also so find and rule:

1. The plaintiff, Wayne Williams ("Williams"), is the owner of a two-acre parcel of land (the "Property") known as and located at 228 Wareham Street in Middleborough, Plymouth County, Massachusetts, pursuant to a deed from "Robert Smith, also known as Robert F. Smith and also an officer of Maxim Artesian Well & Supplies, Inc." ("Smith"), dated January 27, 1976 and recorded in the Plymouth Registry of Deeds at Book 4133, Page 91.

2. Smith purchased the Property from Howard W. Maxim pursuant to a deed dated September 10, 1965 and recorded in the Plymouth Registry of Deeds at Book 3241, Page 746.

3. There is a 40-foot by 100-foot metal "quonset hut" building on the Property which was constructed in 1945.

4. The Town of Middleborough enacted its first zoning by-law (the "By-law") on June 16, 1958.

5. The Property has been located in a "Residence A" zoning district since the enactment of the By-law on June 16, 1958.

6. A well-drilling contractor's office and yard is not a permitted use in a Residence A zoning district.

7. The Property has been continuously used as a well-drilling contractor's office and yard since prior to the enactment of the By-law on June 16, 1958.

8. The proposed addition to the Property would conform to the dimensional requirements of the By-law and was denied a building permit by the building inspector solely because it would be an extension of a nonconforming use which required Board of Appeals approval.

On all the evidence I further find and rule as follows:

9. The Middleborough Zoning by-law presently provides in Section VlA-1 for the continuance of the lawful use of any dwelling, building, structure or land existing at the time of the adoption or subsequent amendment of the by-law. Subparagraph 5 of said section (as inserted in 1978) requires a finding from the Board of Appeals that a change, extension or alteration of a pre­existing nonconforming structure or use is not substantially more detrimental than the existing nonconforming use is to the neighborhood before there may be an extension or alteration.

10. The locus formerly was owned by Howard Maxim who despite being one-armed operated a well drilling business (as well as activities generated by his occupation also as a master electrician) from it. The equipment owned by Maxim were so-called cable drilling rigs to service which he also had a drop hammer and a bit sharpener. Maxim sharpened bits not only for his own equipment but also for third parties. The operation of the drop hammer was very loud and shook the ground when it dropped while the noise of the bit sharpener was continuous banging, similar to a pile driver. Maxim also had a forger which was a necessary part of the process. This equipment was still on the premises when the plaintiff bought them from an intervening owner, Robert Smith.

11. In the 1970's rotary drilling rigs became the preferred mode for bringing in wells. The cable rigs were a mechanically raised and lowered weighted stem with a drill point on the end of it which is raised and lowered until the material is churned up and bailed out with a dart bailer. Water must be fed into the hole by hand. A rotary rig is a noematic drill rotating into the earth with water and air going into the hole at the same time to force out material. The drilling is done inside a casing. The rig rests on a ten wheel cabin chassis, the weight of which is around 60,000 pounds, and is powered by a Diesel engine. It does about ten times as much drilling as a cable rig in the same period of time.

12. Howard Maxim had two cable rigs, one a Bucyrus-Eni 24L and one a Keystone 50. The former is larger than the plaintiff's cable rig and the latter about the same size. The Maxim rigs were gasoline powered as is one of the Williams rigs with the other being converted to diesel. The Williams rotary rigs of which he presently has four (in addition to the two cable rigs) are diesel powered. Maxim also had a service vehicle to bring water to the drilling site. Maxim was a master electrician who originally began his well drilling operation from his home in Middleborough and moved it to the locus at the end of World War II. In addition to his own rigs he often displayed others for sale for the distribution on his property. However, it appears that he occasionally had as many as five rigs of his own on the premises from time to time in addition to rigs he may have bought and put on a site in the hope of getting the contract with the rig thereafter sold (called "spiking the job"). Witness Frank Nudd frequently would do the well digging while Maxim would install the pumps and if possible, sell lightning rods as well to his clients.

13. Maxim had helpers in his business. Mr. Nudd appears to have been the first, but after he left to participate in the war effort and to carry on his own business, Maxim had two or three men working for him. In addition to the varying number of rigs, Maxim had a truck labelled "electrical contractor" with his master electrician's license number on it. It was Maxim who had the quonset hut built on the premises and who began the clearing of trees behind it for the storage of pipes. There is a road leading to the back of the property where the pipes could be off loaded.

14. The plaintiff had an opportunity to buy the business from Maxim in 1963, but he did not feel financially secure enough to go into business for himself. Instead, he went to work for New England Telephone and Telegraph Company, and Maxim sold the property to one Robert Smith who continued the operation. The extent of the Smith business was not addressed in the evidence although it is clear that Smith had modernized from the cable rig into the rotary rig. In 1976 the plaintiff felt confident enough to buy the premises and the cable rigs and other equipment on the site which included the drop hammer, the bit sharpener, a twelve foot ladder, a smaller ladder, metal sharpeners and hoists. Mr. Smith retained the pipe and moved it after the sale. The plaintiff continued to work for the telephone company. He had two full-time employees running the business, and he worked part-time for it. In 1978 he left his long time employer to run his own business full-time.

15. During the years that the plaintiff has owned the locus, the volume of his business has increased dramatically. This is due in part to the explosion in real estate development and to the efficiency of the rotary drilling rigs. The number of his rigs has risen during his ownership from two to the present total of six of which the four rotary rigs are used most frequently. They are left at the drilling site and do not return each night to Wareham Road but only go back on the conclusion of a job. In addition, the plaintiff has (or had) four support service vehicles, pump vehicles, and pick-up trucks, a total of twenty-two pieces. He also from time to time has had other equipment which he uses at his cranberry bog such as a front end loader and a bulldozer which also has been used to clear the area behind the quonset hut. He also has a high pressure washer which disturbed the neighbors during the cleaning operation and now has been replaced by equipment powered more silently.

16. In addition to an increase in the number of vehicles the number of employees also has increased to approximately eighteen persons including an office manager. The proposed addition to the quonset hut was to rearrange the existing space, to install (or to improve an existing) ladies' restroom and to construct a garage for interior repairs. The addition was designed to disguise the appearance of the existing building, but the garage entrance was toward the Maira property rather than to the remainder of locus. The employees generally start work about 6:30 A.M. and for a period of time parked their cars in front of the building. This practice has now changed, and a fence erected across the street side of the locus with slats hiding the activities on the Williams' property. The employees' cars are now parked within the fenced-in area.

17. Diesel engines have to be started well in advance of driving, and accordingly, many of the various vehicles on the site have been started at 6:30 A.M., when many of the neighbors were still in bed.

18. Another practice which has alienated one of the abutters and the neighbors across the street has been the delivery of the pipes used in the operation. It is clear that the plaintiff's predecessors all used pipe in their business operations and stored it somewhere on the locus. The plaintiff, however, received deliveries at hours certain to disturb his neighbors; this practice seems to have been rectified and deliveries limited to approximately six month intervals. The plaintiff has excavated in the rear of the premises in order to expedite the process of loading and unloading pipes in boxes. While the methodology is different, the change seems insufficient in and of itself to be determinative of a change in the nonconforming use.

19. The Maxim well drilling business moved to locus about 1945 or 1946. The first zoning by-law was adopted in Middleborough in 1958. The area was zoned rsidential then and remains so even though it was entirely undeveloped other than for Maxim's operation and perhaps the house next door to the west owned by a stranger to this proceeding said to be an employee of the plaintiff. Mrs. Maxim's home was not in existence at the time, and subsequently the land was sold to her by Mr. Maxim. She visited him at his shop and was familiar with his operation. The houses across the street were not built until the seventies, about the time the plaintiff bought the property from Mr. Smith. There was a Maxim fire engine on display at some time on the site, but the neighbors were not conscious of the commercial activity signified by the quonset hut.

20. The Inspector of Buildings advised the plaintiff that he thought it appropriate for him to consolidate his activities on the site within the building but that the proposed existing extension thereof would require approval from the ZBA.

21. At the ZBA hearings of which there were three sessions in the spring of 1988, the neighbors strongly opposed the extension of the existing building even though the building, as renovated, would be more attractive and the repair work on the plaintiff's vehicles conducted inside rather than in the yard.

22. The ZBA first voted unanimously as follows:

that this board inform Town Counsel and the Building Inspector about this decision and take immediate necessary action to bring the parcel back to its original status in 1958.

The Board then went on to deny the plaintiff's petition for the statutory finding for the following reasons:

1. The site is inappropriate for the use of structure. It is noted that this commercial-type structure has no adaptability to a residential use.

2. The water and sewerage system is suitable for the site. However, the site is unsuitable for the washing of drilling rigs and other equipment on the premises.

3. The use involved will be detrimental to the established and future character of the neighborhood and town and cannot be subject to appropriate conditions and safeguards. In effect, the proposed use of this building will render it more non­conforming than its present use.

4. This site and its use is a nuisance and a serious hazard to vehicles and pedestrians.

5. Adequate and appropriate facilities cannot be provided to insure the proper operation of the use, structure or condition.

23. None of the homes in the neighborhood were there when Howard Maxim who was the unusual one-armed electrician and predecessor in title commenced his well digging operation in locus at the end of World War II. The development across the street apparently came to fruition in the mid-seventies whereas the Maxim house was built earlier on land purchased from Maxim.

24. Pursuant to the ZBA directive the Inspector of Buildings notified the plaintiff by letter (Exhibit No. 7) to cease all activity upon this property "except that which was in existence at the time of the adoption of the zoning by-law." The order based the reasons for this action on the conclusion

this business has now been extended and enlarged to such a degree so as to be substantially different from the use in existence at the time of the adoption of the zoning by-laws, and has a substantially different and more detrimental impact on the community and immediate neighborhood affected by this business.

The municipal authorities recognize that the plaintiff's well digging operation is protected by the provisions of G.L. c. 40A §6 as well as the like provisions of the local zoning by-law. The ZBA, however, froze the plaintiff's situation at that in 1958 when the by-law was adopted; the plaintiff urges the Court to find that the mere increase in the volume of the plaintiff's business does not vitiate the status of the operation as nonconforming.

There are two separate counts and two different legal questions posed by the pleadings. The original action was an appeal pursuant to G.L. c. 40A § 17. This is based in the language of section 6 of said chapter which provides as follows:

Pre-existing nonconforming structures or uses may be extended or altered provided that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority on the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or see Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 21 (1987)] use to the neighborhood.

The decision of the ZBA failed properly to address this aspect of the litigation. It is clear, as the Board's reasons state, that the addition is an extension of a nonconforming use and is not adaptable to residential uses. However, if as I hereafter find and rule the well digging operation increased over a certain extent over that in 1958 may continue, then it would appear on the face of it that the neighborhood would be improved by having some of the activities conducted within the building rather than outside where any noise or fumes would more readily adversely impact on the neighborhood. Granted that the extension should be permitted, nonetheless, it is preferable to have any entrance to the proposed garage on the opposite side of the building from the Marra home. Should the Board upon the remand to it by this Court of the petition conclude that the statutory test has been met, it may wish to cloak its finding with certain conditions protective of the neighborhood.

There is another aspect of the dispute which is more difficult to resolve. The plaintiff seeks a determination pursuant to the provisions of G.L. c. 240 § 14A as to the extent its operation is affected by the zoning by-law. As set forth above this count was added by agreement of counsel to resolve the real points of contention in this neighborhood dispute. It is no objection to proceedings under this statutory umbrella that administrative remedies have not been exhausted. See Sister of the Holy Cross v. Brookline, 347 Mass. 486 (1964). Banquer Realty Co., Inc. v. Acting Building Commissioner of Boston, 389 Mass. 565 (i983).

We turn therefore to a consideration of the criteria to follow in determining whether the plaintiff has exceeded the permissible limits in the increase in business activities on the locus. More than twenty years ago the Supreme Judicial Court in Town of Bridgewater v. Chuckran, 351 Mass. 20 (1966) synthesized the rule of then recent cases as to the following three tests for determining whether a current use of property fits within the statutory exemption for nonconforming uses, i.e. (citations being omitted)

(1) Whether the use reflects the nature and purposes of the use prevailing when the zoning by-law took effect.

(2) Whether there is a difference in the quality or character, as well as the degree of use.

(3) Whether the use is 'different' in kind in its effect on the neighborhood . . . .

In Chuckran the Court found impermissible a ready mix concrete manufactory in place of what have been a builder's yard with incidental mixing by concrete.

Chuckran was followed by Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) in which Justice Quirico fully analyzed many cases in this area in deciding which activities of a candle making operation might continue. The Appeals Court recently has held that any particular business need not violate each part of the Chuckran test to be an invalid increase of a nonconforming activity. In Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469 (1988), reversed on other grounds 404 Mass. 571 (1989) Justice Armstrong considered whether a so-called fast food restaurant which was to replace a sit down facility with a take-out operation could be barred without violating all the Chuckran tests. He wrote that the Court had found no case holding that the use must fail each aspect of the Chuckran test and that none had been cited to it.

In a fact intensive field such as this it is difficult to apply general principles to each new varying fact pattern. It is clear, of course, that a mere increase in volume is not determinative. Kreger v. Public Buildings Comm. of Newton, 353 Mass. 622 (1968) Cape Resorts Hotels v. Alcohol Licensing Board of Falmouth, 385 Mass. 205 , 214-215 (1982). It also is true that the status is not lost if the use is improved and made more efficient. Wayland v. Lee, 325 Mass. 637 (1950) Berliner v. Feldman, 363 Masso 767 (1973) or if the hours of operation are expanded. Powers, supra, at Page 659-660. It is when all such factors coalesce that the expansion may be found excessive. The proper considerations for a Judge to follow are set forth in Board of Selectmen of Blackstone, 4 Mass. App. Ct. 311 (1976).

Applying the appellate court guidelines to the facts which I have found it seems apparent that during the height of construction activities (temporarily at least now past) there was a decided increase in the number of vehicles kept on the premises, in the noise generated by the diesel engines, the persons employed the washing operation and the pipe deliveries. Conversely the earth shaking vibrations caused by Mr. Maxim's method of business which predated the present development of the neighborhood contained elements offensive to others which are no longer present.

On all the evidence I find and rule that the present use meets Chuckran test no. 1, but that it violates nos. 2 and 3 by both constituting through the increase in the number of vehicles and in their type a difference of quality and character and in the effect on the neighborhood of the well digging operation.

Nonetheless the law does not permit the Town to decree a return to 1958 standards. It is regrettable that the neighbors failed to make their objections known to the plaintiff long before their patience had been so sorely tried. He has since attempted to alleviate their concerns by rescheduling hours of deliveries and by substituting a more silent washer for vehicles. On all the evidence I find and rule as follows:

a) Any pieces of small machinery used in the plaintiff's cranberry business and not constituting part of the well digging operation are to be removed from the premises.

b) No more than four well drilling rigs, whether rotary or cable, and the water supply vehicles for them are to be kept on locus.

c) The number of employees using the premises is not to exceed the present number, and their cars are to be parked behind the fence.

d) Without the consent of the neighbors most affected the diesel engines on the locus are not to be started before seven-thirty a.m. nor are deliveries of pipes or other supplies to be made before eight o'clock a.m.

Judgment accordingly.