These are two of a group of cases [Note 1] involving two special permits issued to the defendant, C.J. Mabardy Washed Sand and Gravel, Inc. ("Mabardy") by the defendant, Board of Appeals of the Town of Winchendon ("Board"). The permits were applied for under G.L. c. 40A, §6 and §§1.4 and 3.21 of the Winchendon Zoning By-law ("By-law"). The Board approved, with conditions, a special permit for the expansion of Mabardy's commercial gravel operation and a second special permit "for the alteration of a pre-existing nonconforming gravel pit to a nonconforming demolition landfill."
The plaintiffs have appealed the grant of special permits alleging that the Board exceeded its authority in granting them. The plaintiffs have now moved for summary judgment pursuant to Rule 56, Mass. R. Civ. P., on the grounds that "under the Winchendon zoning bylaw, the Board of Appeals lacked the authority to grant the requested special permits," and ". . . G.L. c. 40A, §6 does not authorize issuances of a special permit to add a new and different use to the site."
This matter came on to be heard on July 20, 1989. After consideration of arguments of counsel, various memoranda, pleadings and documents, I find and rule that as to the special permit permitting the expansion of Marbardy's commercial gravel operation, there are genuine issues of material fact and as to such permit the motion is denied.
As to the permit allowing for the alteration of a pre-existing nonconforming gravel pit to a nonconforming demolition landfill, I find and rule that there is no issue of material fact as to whether or not such action was authorized by either the By-law or by G.L. c. 40A, §6 and that as to this issue the case is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 (1976).
The second sentence of G.L. c. 40A, §6, under which Mabardy applied for the landfill permit, reads as follows:
. . . Preexisting 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 or by 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 use to the neighborhood.
In granting the special permit, the Board made such a finding.
Pertinent sections of the By-law read as follows:
Article 3.1 Basic Requirements
. . . Any use not listed shall be construed to be prohibited.
Article 3.43 Extension of Nonconforming Uses
Nonconforming uses of land shall not be extended beyond the boundaries of the property within which the use occurred at the time of the adoption of this bylaw.
The Board of Appeals may authorize by Special Permit a nonconforming use of a building or structure to be altered or enlarged . . . .
Article 6.9 Board of Appeals
. . . The Board shall carry out the following specific powers and duties:
. . . b. Special Permits: To hear and decide applications for special permits as provided in this bylaw, subject to any general or specific rules contained therein . . . .
In regards to Article 3.1 of the By-law, a demolition landfill is not listed in the Schedule of Use Regulation.
In consideration of the foregoing, I find and rule that neither the By-law nor G.L. c. 40A, §6 authorizes the Board to issue a special permit to change a nonconforming use to a different but nonpermitted use, despite a finding that the use would not be more detrimental than the existing use to the neighborhood. While c. 40A, §6 authorizes municipalities to provide for alteration of nonconforming uses by special permit, it does not require that they so provide.
Accordingly, the grant of the special permit to alter the pre-existing nonconforming gravel pit to a nonconforming demolition landfill exceeded the authority of the Board; the plaintiffs' motion as to such permit is allowed, and said permit is hereby annulled accordingly.
By the Court
[Note 1] The other cases are Miscellaneous Case No. 122447, C.J. Mabardy, Inc. v. Board of Appeals of Winchendon; Miscellaneous Case No. 123025, Anthony Basso v. Board of Appeals of Winchendon; and Superior Court Case No. 89-0070, Blasco et al v. Board of Appeals of Winchendon.