ROLAND P. LEARY, TRUSTEE OF TIBER REALTY TRUST vs. DUXBURY BOARD OF APPEALS and others.

Plaintiff, appealing under G. L. c. 40A @17, seeks to annul a decision dated February 15, 1990 (Case 90-1) (the "Decision") of the Zoning Board of Appeals (the "Board") of the Town of Duxbury (the "Town") upholding Cease and Desist Orders issued on or about October 12 and October 24, 1989 (the "Orders") of Defendant, Kevin S. McDonald, the Town's Building Inspector (the "Building Inspector") as to property ("Locus") off Keene Street in the Town. The Orders required Plaintiff to cease operation of septage treatment lagoons (the "Lagoons"), a stump and brush dump (the "Stump Dump") and a loam supply business.

A trial was held on January 10, 1992 and March 12, 1992. A stenographer was appointed to record and transcribe the testimony. Twenty-four Exhibits (some with multiple parts) were introduced into evidence and all are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Avery Lovell (prior owner of Locus), Robert G. White (former Town Employee), Lawrence F. Lovell (cousin of Avery Lovell) , Arthur D. Peacock (abutter to Locus), Kenneth J. Leary (brother of Plaintiff) , Roland P. Leary (Plaintiff) , all for Plaintiff; and Joanne and Paul Daley (neighbors to Locus), for Defendant.

I find and rule as follows:

1. Locus consists of two parcels of land. One has approximately 5.45 acres located off of Keene Street in the Town and is identified on the Town's Assessors Map as Parcel No. 060-003-000 ("Parcel 3"). The other has approximately 12.18 acres, more or less, also located off of Keene Street and is identified on the Assessors Map as Parcel No. 060-008-000 ("Parcel 8"). Parcel 3 is just off Keene Street. Parcel 8 is farther away from Keene Street, to the east, and is separated from Parcel 3 by a 20.21 acre tract, Parcel 7, not involved in this action. Access to Parcels 3 and 8 is from Keene Street.

2. Plaintiff acquired Locus from Avery W. Lovell ("Lovell") by deed recorded on August 11, 1986.

3. Both Parcel 3 and Parcel 8 are in Residential Compatibility and Planned Development I Districts under the Town's Zoning By-Law (the "By-Law"); Parcel 8 is also in a Wetlands Protection District under the By-Law. None of the uses complained of by the Building Inspector are allowed in such districts, nor have they ever been allowed in the predecessor districts in which Locus was located. After receiving the Building Inspector's Orders, Plaintiff appealed them to the Board, which unanimously upheld the Orders and Plaintiff then commenced this action.

4. Plaintiff seeks determinations that: the use of Parcel 8 for the Stump Dump is a valid non-conforming use (Count I); the removal of loam from Parcel 8 is incidental to the Stump Dump and not a loam supply business as claimed by the Town (Count II); the use of Parcel 3 for the Lagoons is protected by the six year limitation contained in G. L. c. 40A §7, second paragraph (the "Six Year Statute") (Count III) or by the ten year limitation in the same paragraph (the "Ten Year Statute") (Count IV); the Lagoons are necessary for the Town's compliance with G. L. c. 111 §31D (Count V); and the Board is equitably estopped from asserting that the Stump Dump on Parcel 8 and the Lagoons on Parcel 3 violate the By-Law (Count VI).

5. The By-Law was first enacted in March, 1944. Plaintiff stipulated at trial that the Lagoons were not in use before that time and thus is not claiming that they are a non-conforming use. He made the same stipulation as to Plaintiff's loam supply operations.

6. Lovell's parents acquired Locus in 1932 and conveyed it to him around 1967. He himself took over operation of the Stump Dump and the Lagoons on Parcel 8 in 1948. Lovell had one dump truck that he used in the operation of the Stump Dump. He would also, every three months or so, hire a bulldozer to come in and move stumps. That level of operations continued until 1960, when building activity in Duxbury blossomed and the use of Locus increased. At that time Lovell bought his own bulldozer and two back hoes.

7. Lovell's business increased in scope and in 1963 he incorporated his trucking business and acquired more equipment. By 1974 Lovell's trucking business had 10 to 12 pieces of equipment using Locus, including trucks, bulldozers and loaders.

8. Parcel a was primarily woodland until around 1946 when part of it was cut over by Lovell's father.

9. Lovell started removing loam from Parcel 8 around 1970. Loam is generated at a stump dump because the stumps rot, and after four or five years the rotting material can be sifted and the loam resulting from the rotting can be extracted. The process is accelerated if the stumps are covered with fill, as became required by the Commonwealth in the 1980's.

10. Stumps (in which I include brush and other tree remains) were deposited on Parcel 8 as early as 1938 (debris from the hurricane of that year). However, until sometime after the advent of zoning in March 1944, any dumping of stumps was at best infrequent and involved a very small area. What was involved is suggested by neighbor Peacock, who testified "I used to go down there occasionally. And I found this material dumped in the woods down there, which it was then."

11. Counsel for Plaintiff pursues this logic: The Decision states that Parcel 8 wasn't a Stump Dump before 1944. If stumps were dumped pre-1944, then the Decision must be annulled. If I find that there was pre-1944 dumping and the Stump Dump activity increased after 1944, then I should remand so that the Board could decide, under the Powers/Chuckran tests ( Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 1973, and Bridgewater v. Chuckran, 351 Mass. 20 , 1966) whether a finding under G. L. c. 40A §6 is necessary.

12. That oversimplifies the situation. I do not find there was enough stump dumping pre-1944 to place matters in the mould Plaintiff suggests. Whatever dumping there was did not rise to more than the occasional and was not available generally to outsiders. Locus became a Stump Dump when Lovell took it over from his father in the late 1940's and began to operate Locus purposefully as a Stump Dump.

13. What of the wholesale/retail loam business which the Town asserts Plaintiff carries on from Locus? I find that did not exist pre-1944 (Plaintiff admits this). It grew up, first under Lovell and more recently under Plaintiff, as an adjunct of the Stump Dump. At least under Plaintiff's reign, sales are made from another location associated with Plaintiff (Mayflower Street) in Town, typically by phone order placed to Mayflower Street. Billing and payments are conducted from Mayflower Street. Extraction of loam is not required in a Stump Dump operation but it is a natural by-product. Its method of production is outlined at 9 above.

14. The question here, however, is not whether the loam operation should be seen as a separate business (as suggested by the Town) or as an allowable side activity of the Stump Dump (as suggested by Plaintiff). That would be the question if the Stump Dump were a legal activity on Locus, but, as stated above, it is not. The loam operation stands as a use not allowed for Locus under the By-Law.

15. Lagoons were originally established on Parcel 8, by Lovell. The Chairman of the Town's Board of Health sent Lovell, as then owner of Parcel 8, the following letter on Board of Health stationery, dated January 15, 1963 (Exhibit 6):

"The Selectmen have indicated their approval of your plan to develop a dumping pit on Lot 8 of Block F.

Because of Planning and Zoning regulations we cannot guarantee that you will be undisturbed in your use of Lot 8 of Block F over an unlimited number of years, but we believe this site will be considered suitable for many years if used in the manner which you now outline.

You may consider this letter an authorization to use Lot 8 of Block F for a dumping pit for cesspool pumpage, until further notice."

16. In approximately 1970, Lovell acquired Parcel 3 and desired to construct Lagoons on Parcel 3. The Town had been aware of the existence of the Lagoons on Parcel 8 and septage from the Town, including from its schools, was disposed in those Lagoons every year. Prior to constructing Lagoons on Parcel 3, Lovell contacted the Selectmen to obtain permission. He and the Selectmen met at the site and he received a letter from the Chairman of the Board of Health on Board of Health stationery dated March 30, 1971 Exhibit 7, which is as follows:

"The Board of Health have indicated their approval of your plan to develop a dumping pit on Lot 3 Block F.

Because of Planning and Zoning Regulations, we cannot guarantee that you will be undisturbed in your use of this property over an unlimited number of years, but we feel that this site will be considered suitable for many years if used in (sic) your proposal.

This may be considered an authorization to use Lot 3 Block F for a dumping site for cesspool pumping until further notice."

After Lovell received the letter, he installed and commenced using the Lagoons on Parcel 3 and continued to use them until they were sold to Plaintiff in 1986. In the Lagoons on Parcel 3, he disposed of septage from the Town, including septage from the schools. The Town was aware of the use of these Lagoons because they were inspected every month by the Town and by the State. Eventually, the Town asked Lovell to close the Lagoons on Parcel 8 and to cover the area, which he did, with the Town's approval.

Lovell testified that he contacted the Selectmen, who also constituted the Board of Health, to obtain permission to install the Lagoons on Parcel 3. Lovell stated he did not believe that in 1948 there was a Building Inspector. He testified that if someone wanted to build something then, the person approached the Selectmen for permission.

Arthur Peacock, who operated lagoons on Parcel 7, adjacent to Parcel 3, commencing in 1971, similarly described the approval process relating to his lagoons. He obtained permission from the Selectmen (Exhibit 4). At that time, the Selectmen and the Board of Health were the same body. His permit contained the same cautionary language as Lovell's permits.

17. The Six Year Statute is as follows:

"provided, further, that if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law;"

18. Exhibit 21 is the Town's "Protective By-Law and Building Code" as in effect at least through 1962. The "Protective" (i.e., zoning) by-law is "administered by the Selectmen, and a Building Inspector appointed by them." It provides for the issuance of "building permits", named as such, by the building inspector, but also provides that no building or structure shall be erected without a permit from the Selectmen.

19. Exhibit 22 is the present By-Law. The record does not indicate the transition from Exhibit 21 to Exhibit 22. Exhibit 22 provides that it is enforced by the Selectmen, either directly or by a Building Inspector. It states that no person shall erect a structure without a permit from the Selectmen or the Building Inspector (section 901). Section 903.1, on the other hand, provides that building permits are to be issued by the Building Inspector.

20. Plaintiff asks that I recognize the informality with which Town business was carried on at the time the Lagoons were established on Parcel 3 in 1971. I accept that and also accept that the Selectmen and the Board of Health were the same individuals wearing different hats.

21. I still do not arrive at the result desired by Plaintiff. First, I do not agree that the March 30, 1971 letter is a "building permit" within the meaning of the Six Year Statute. Even if the Board of Health was the Board of Selectmen in disguise, the individuals involved thought they were acting in the former capacity. The By-Law provided for the issuance of "building permits" as such and I am confident that what happened was that noone thought a building permit was necessary for "dumping pits." The letter specifically speaks of "Zoning regulations", suggesting its author thought they were a matter separate from the permission granted by the letter.

22. Second, the permission in the letter was specifically a limited one. Lovell (and thus Plaintiff) was told he could use the dumping pits but that he could not count on continued use. Whatever agreement can be derived from the words "suitable for many years" has surely been satisfied. The Town first took the position there was a violation in 1989 and, six years not having run from that, Plaintiff is not protected by the Six Year Statute.

23. Plaintiff argues that he is protected by the Ten Year Statute, which is:

"and provided, further that no action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any ordinance or by­ law adopted thereunder, or the conditions of any variance or special permit, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within ten years next after the commencement of the alleged violation."

24. The Lagoons have a man-made clay lining, installed to prevent leaching. Effluent is led into the Lagoons through a large concrete structure with a metal top (Exhibit 19). It then passes into the Lagoons through PVC pipes. I find that the Lagoons are "structures" within the meaning of the Ten Year Statute. However, the Ten Year Statute protects against actions to compel removal, alteration or relocation. It does not give use protection, contrary to the Six Year Statute. The Inspector's Orders require that operations cease, not that there be alteration etc. The Ten Year Statute does not protect Plaintiff.

25. Plaintiff argues, lastly, that the Town is estopped due to its knowledge and involvement in the construction and operation of the Lagoons. I find, as suggested by Plaintiff, that: the Town gave the permission contained in the 1971 letter; the Town has known about the operation of the Lagoons, has periodically inspected them and has disposed of Town sewage in the Lagoons; the Town has cited the Lagoons as its answer to the Department of Environmental Protection of the Commonwealth, which notified the Town (Exhibit 11) that the Town had to provide facilities for the receipt and disposal of privy, cesspool and septic tank contents, pursuant to G. L. c. 111, §31D; the Town's answer to the DEP is contained in Exhibit 12, generally to the effect that the Town does count on the Lagoons on Parcel 3 as fulfilling its Chapter 111 requirements until such time as Plaintiff's challenge to the Inspector's Orders is finally resolved (South ShorePumping, referred to in Exhibit 12, is a business entity related to Plaintiff).

26. However, estoppel of public bodies and officials is discouraged. O'Blenes v. Zoning Board of Appeals of Lynn, 397 Mass. 555 (1986). There is nothing in the case before me which calls out for an exception. The arrangement was spelled out clearly in the 1971 letter. Lovell knew what he was getting into and if Plaintiff didn't, he should have. The fact that the Town benefitted, and benefits, from the Lagoons is of no help to Plaintiff. The arrangement, even if mutually beneficial, was from the beginning, "until further notice." Plaintiff is business-wise and the Town has not taken advantage of him or misled him.

27. The Decision is upheld.

Judgment accordingly.