MISC 117554

April 9, 1990

Middlesex, ss.



The Plaintiff has brought this action on various grounds. Count I is an appeal, pursuant to G.L. c. 41, §81BB, of a decision of the Planning Board of the Town of Acton ("Board") denying approval of a subdivision plan and of the related negative report of the Board of Health of the Town of Acton. Count II is brought under G.L. c. 231A, §1, seeking a determination of the scope, extent and nature of the Plaintiff's rights under the Acton Zoning By-law ("By-law") relative to an area of its property which is zoned residential and which is and has been used as access to an industrially zoned area of the same property. By Counts III and IV, the Plaintiff seeks a determination that the By-law adopted in 1954 is arbitrary and unreasonable inasmuch as it caused that portion of the Plaintiff's property fronting on a public way to be zoned "R-2" residential, while zoning the rear portion of such property industrial. The Plaintiff asks, in the alternative, for a determination that the residential portion of its land has been, and continues to be, used for industrial purposes since prior to the adoption of the 1954 By-law and that, accordingly, such use is protected. Counts V and VI seek a determination as to the validity of a 1984 zoning amendment which rezoned a portion of the Plaintiff's property from "G.I.", general industrial, to "R-4", residential.

The Attorney General of the Commonwealth of Massachusetts was served with a copy of the complaint on September 29, 1986, but has chosen not to intervene.

This case was tried on June 16, 1987, October 27, 1988 and April 3, 1989 at Boston, the unusual time lag being occasioned by serious efforts on the part of the parties to resolve their differences. Twenty-eight (28) exhibits were admitted into evidence, including one post-trial exhibit, all of which are incorporated herein for purposes of any appeal. In addition thereto, the Court has taken judicial notice of the 1987 United States Geological Survey Map entitled, "Maynard Massachusetts 1:25000-Scale metric topographic map". Seven (7) witnesses gave testimony. Locus and several other subdivisions in Acton were viewed by the Court in the presence of counsel.

In consideration of the foregoing, I find the following facts to be pertinent hereto:

1. The Plaintiff is the owner of a parcel of land in Acton ("Locus"), which contains approximately forty-seven and three tenths (47.3±) acres of land, bounded northerly in part by Laws Brook Road and westerly in part by Fort Pond Brook. Easterly and southerly, Locus is bounded by land of various other owners, principally W. R. Grace & Company. In 1954, and at all times material hereto, the northerly portion of Locus, running parallel to and 500 feet from Laws Brook Road, was zoned residential. From 1954 until 1984, the remainder of Locus was zoned general industrial. The foregoing description of Locus is reflected on the Plaintiff's Preliminary Subdivision Plan ("Preliminary Plan") (Exhibit No. 1). Locus also appears on Map H-4 of the Town's Atlas, specifically as Lots No. 127, 128 and 116-3 (Exhibit No. 3). Lot No. 127 constitutes the existing access road through residentially zoned land to industrially zoned land. In 1984, the zoning of Lot No. 116-3 was changed from general industrial to residential, "R-4".

2. The northwesterly side of Locus runs from the intersection of Fort Pond Brook and Laws Brook Road, along said road a distance of about 276 feet to a residential lot, then around sad lot and three adjacent residential lots, paralleling Laws Brook Road a distance of 400 feet, then along said road approximately 401 feet to land of W. R. Grace & Company. Laws Brook Road constitutes the only frontage which Locus has on a public way.

3. As found, Locus lies partly in a general industrial zone. Said zone is located in the southeasterly part of Acton and is bounded easterly by the Concord town line. The zone is divided by a busy railroad line running in an easterly-westerly direction. Locus is situated in that portion of the zone lying northerly of said railroad. While, as noted, the "G.I." zoned portion of Locus does not abut a public way, it also appears that no part of the zone lying northerly of the railroad abuts such a way or has access to such except over residentially zoned land.

4. The central portion of Locus is occupied by a concrete block plant, an office building and diverse machinery and equipment used in the washing, grading and processing of gravel. This area also contains several settling ponds used to purify wash water. A considerable amount of gravel has been removed from the central and northerly areas of Locus, which areas are relatively level. The southerly area, including Lot No. 116-3, is hilly, with steep elevations.

5. The Plaintiff's predecessor in interest to Locus, Lexington Sand and Gravel, commenced gravel excavations on the site in 1949, starting at Laws Brook Road and working southerly into the site. By the time of the adoption of the By-law in 1954, the entire frontage along Laws Brook Road had been excavated and a gravel operation was being conducted beyond the 500 foot zoning line. The "R-2" zoned portion of Locus was being used at this time for an office, equipment storage, parking of vehicles and processing. Some of such equipment is still kept on this area. Sometime in 1963, the concrete block plant was constructed on the industrially zoned portion of Locus. Thereafter, in the late 1970's, the Plaintiff commenced trucking off-site gravel onto Locus for processing and most, if not all, of the on-site gravel mining ceased.

6. A road across the "R-2" portion of Locus has existed since sometime prior to 1954. Until 1963, this road was used principally for the removal of gravel and, thereafter, for receiving materials and removing processed gravel and masonry products.

7. On or about November 21, 1984, the Plaintiff submitted its Preliminary Plan of Locus to the Board, pursuant to G.L. c. 41, §81S. The proposed subdivision divided Locus into ten (10) lots laid out along a 1,250 foot cul-de-sac. On or about January 14, 1985, the Preliminary Plan was approved, subject to various conditions including one ". . . that the Definitive Subdivision Plan . . . show a cul-de-sac of 500 feet or not exceeding 500 feet, . . . ."

8. Section IV(A) (8) of the Town of Acton Subdivision Rules and Regulations ("Rules") (Exhibit No. 4) states in part as follows:

Cul-de-sac streets, whether temporary or permanent, shall not be longer than 500 feet, unless otherwise approved by the Planning Board . . . .

9. On or about June 2, 1985, the Plaintiff submitted a Definitive Subdivision Plan ("Definitive Plan") of Locus to the Board. This Plan, which is the subject of this action, reduces the number of lots to seven (7) and the length of the cul-de-sac to about 850 feet. The Definitive Plan included a request for eleven (11) waivers from the Rules.

10. On August 13, 1985, the Board disapproved the Definitive Plan for various reasons as set forth in its decision (See Exhibit No. 12). The Board refused to grant any of the waivers requested by the Plaintiff. The principal dispute, however, appears to be the Board's refusal to waive the applicable Rules or to otherwise approve the proposed cul-de-sac in excess of 500 feet.

11. The Plaintiff has cited numerous instances of subdivisions in Acton which are serviced by cul-de-sacs in excess of 500 feet. All but two of these subdivisions, however, were approved at least ten (10) years prior to the Plaintiff's definitive submittal. Additionally, there is no record evidence as to the circumstances under which such waivers were granted.

12. The only uses permitted in both the "R-2" and "G.I." zones are agricultural and conservation, municipal, educational and religious uses.

Other than the issue of insufficient information, which was raised by the Board of Health, the controversy central to all areas of dispute herein is access, including the lack or sufficiency thereof.

The Plaintiff seeks a determination, under either G.L. c. 231A or c. 240, §14A, that it has established, as a pre-existing nonconforming use of the "R-2" zoned portion of Locus, industrial access to the rear, or "G.I.", zoned area of such property. To come under the protection of G.L. c. 40A, §6, however, the "use" must have been in existence prior to the adoption of the By-law, or in this instance, 1954. While there is ample evidence to establish that, prior to that date, gravel was being removed from, and possibly brought into, the industrial area, the gravel removal operation appears to have ceased in the late 1970's. Moreover, while such use may be classified generally as "industrial" in nature, the protected use must be a specific one (i.e. the transportation of gravel). Such prior use does not entitle the Plaintiff to access the "G.I." zone over the "R-2" zone for any and all industrial purposes, particularly under a By-law, such as Acton's, in which uses permitted in the industrial zone are specifically spelled out, and further, since the processing of gravel does not appear to be such a use. As will be discussed further, however, the Plaintiff's present access may well be protected by the rule of Lapenas v. Zoning Board of Appeals of Brockton, infra.

While the Defendants suggest that an additional accss road may be acceptable, the Plaintiff has justifiable concern that use of such access road for diverse industrial purposes may violate the By-law, particularly in light of the foregoing.

It is well-established that the use of land for industrial access constitutes an industrial use. Harrison v. Building Inspector of Braintree, 350 Mass. 559 (1966). This rule, however, has been further defined by Lapenas v. Zoning Board of Appeals of Brockton, 352 Mass. 530 (1967) and Chelmsford v. Byrne, 6 Mass. App. Ct. 848 (1978), where it was stated, in the case of Lapenas, that any zoning which operates to bar any access whatsoever to land for any lawful use is invalid, and in the case of Byrne, that any zoning which operates to bar any access whatsoever to land for any lawful use consistent with the By-law is invalid. More recently, in Callan v. Town of Reading, Land Court Miscellaneous Case No. 116815, affirmed, Appeals Court No. 86-631, February 5, 1987, a matter involving facts similar to those presented herein, Chief Justice Sullivan commented as follows:

It could not have been within the meaning of lawful uses as applied by the Appeals Court in Byrne, supra, to include uses which are subject to the discretion of the local special permit granting authority and to which no one is entitled as a matter of right . . . I do not believe that the "consistent use" theory enunciated by the Appeals Court in Byrne is met if the only uses which are common to the two municipalities [in this instance zoning districts] are those mandated by the General Court for special protection. After all the purpose of such statutory provision is to forbid the exclusion of socially protected causes, not to limit permissible uses to them.

The Defendants argue that the Plaintiff has used the frontage ("R-2") area of Locus for access to the industrial area since 1954 and hence is able to make reasonable use of Locus. [Note 1] Assuming, without further deciding, that the Plaintiff has established, as a nonconforming use, access over the "R-2" portion of Locus, such use, if it exists, is limited under c. 40A, §6 to the use prior to 1954, which appears to have been the removal of gravel mined on the premises.

After the adoption of the By-law, and while the gravel pit was in operation, the Plaintiff had the benefit of G.L. c. 40A, §6 and both Lapenas and Byrne (assuming such cases had then been decided). Inasmuch as the use of a gravel pit, like any mining operation, is finite in nature and as, in the 1970's, mining operations upon Locus had ceased altogether, the gravel on a major portion thereof having been exhausted, the Plaintiff (or its predecessor) was left with the processing plant and concrete block plant on Locus, related operations of which have been conducted for over twenty­five (25) years with apparently no objections. Accordingly, as I know of no rule of law which would prevent a landowner from changing his use from one allowed use to another, I find that, insofar as access is concerned, the Plaintiff's use of the "G.I." zoned areas of Locus has been and is within the parameters of Lapenas and Byrne as interpreted by Callan.

I note that although the Plaintiff appears to once again wish to change its use for Locus, its proposed use, whatever it may be, is of no concern to the Board in reviewing and passing upon the proposed subdivision. This is so insofar as, under Rule E of the Rules, the Board's sole concern is that the lots comply with the By-law, said language clearly referring to size and dimension rather than use, and as a final grant of subdivision approval by the Board may eventually enable the ways proposed by the developer to become public and hence moot the issue of access altogether.

Additionally, even if the concrete block plant and gravel processing plant are to remain in use in conjunction with the subdivision, there is no use, consistent with "R-2" uses, which may be made of the remainder of the forty-seven (47), more or less, acres of Locus, so as to deny the Plaintiff the right to access the "G.I." zoned portion of Locus by crossing over the "R-2" zoned portion of the same. Should it be held that ths By-law does prohibit such access, particularly in view of the size of Locus and the requirement of the Rules and of the Board that no cul-de-sac in this instance exceed 500 feet in length, said By-law would be arbitrary and unreasonable and hence unlawful. I lastly note that the Defendants' objections to a cul-de-sac in excess of 500 feet in length appear to be based on concerns for safety in the event of blockage of the roadway by accident or other disaster. It would appear that this concern could be adequately addressed by either an emergency or secondary access or by a redesigning of the proposed access road to minimize the likelihood of such blockage.

Accordingly, I find that the Plaintiff may use its frontage abutting the public way to access its industrial land. I thus find that the Plaintiff may, should it choose, with a reasonable time modify its Definitive Plan and submit such revised Plan to the Board for further consideration not inconsistent herewith.

I further find that it is unnecessary for the Plintiff to supply the Board of Health with percolation tests on a lot by lot basis, inasmuch as no buildings are as yet proposed and as such tests belong more properly in the realm of the building permitting process. Sufficient information, however, including percolation tests if appropriate, should be furnished as to the effect any road construction or grading will have upon the Town's water supply or other appropriate public health concerns.

I decline at this point to address the residential zoning of Lot No. 116-3, inasmuch as a final approval of the subdivision will leave the zoning of such lot "G.I." for the statutory period. I do observe, however, that as residential uses are not permitted in the "G.I." zone, an access problem, as aforesaid herein, may exist should said parcel become effectively zoned residential.

The Court will retain jurisdiction over this matter so that it may expedite determination of any further issues relative hereto.

Judgment accordingly.


[Note 1] But somewhat interestingly, in view of this argument, the Defendants deny that the Plaintiff has established a nonconforming use.