MISC 10-428686

April 12, 2012


Piper, J.


Related Cases:

Plainville Asphalt Corp. (“PAC”) commenced this action on April 29, 2010 with the filing of its complaint under G.L. c. 240, § 14A. PAC seeks declaration about the application of the Plainville Zoning Bylaw (the “Zoning Bylaw” or the “Bylaw”) to its property ( “Site”), known and numbered as 3 Belcher Street in Plainville. PAC seeks a declaration that the production of bituminous concrete at the Site is permissible as-of-right. In the alternative, PAC seeks a declaration that it may produce bituminous concrete under G.L. c. 40A, § 6 as a legally protected prior nonconforming use.

On June 15, 2010 I held a Case Management Conference. PAC submitted its Motion for Summary Judgment on January 7, 2011. On February 22, 2011, Defendant Town of Plainville (“Town” or “Plainville”) submitted its opposition to PAC’s Motion for Summary Judgment and filed its Cross-Motion for Summary Judgment. I heard oral argument on the cross motions, and now decide the case.

The following material facts are supported by the summary judgment record and are not in dispute:

1. PAC, a Massachusetts corporation, was organized under the laws of Massachusetts on January 1, 1998.

2. In 1965, bituminous concrete manufacturing was an as-of-right use on the Site. [Note 1]

3. On or about April, 1965 a predecessor of PAC obtained permits to (i) erect a bituminous concrete plant on the Site, (ii) store liquid asphalt, oil gasoline and other inflammables needed for production, and (iii) produce bituminous concrete on the Site.

4. From 1965 to the end of 2002, bituminous concrete was produced continuously at the Site.

5. In 1967, Plainville amended the Zoning Bylaw by adding to § 2.8, the Bylaw’s “Use Regulation” table, the following: “Cement, Concrete and Bituminous Product Manufacture and similar operations causing Dust, Noise and Odor.” This type of use was designated as “an excluded or prohibited use” in all zoning districts in Plainville.

6. Additionally, the 1967 Bylaw amendment combined the provisions for commercial and industrial standards, §§ 3.6.1 and 3.6.2, into a single provision under § 3.4. This amendment did not substantively alter those standards then or at any time to date.

7. Section 3.1.1 of the Bylaw as existing in 1965 permitted a prior nonconforming use “provided such use has not been abandoned for a period of one year.”

8. In 1983, the Town’s Zoning Bylaw was amended again. In relevant part, § 3.1 was amended to provide that the lawful nonconforming use of any structure or land may be continued after an enactment or subsequent amendment of the Bylaw so long as “the use of premises or the use of a structure [does not [Note 2]] cease[] to be continued in non-conforming use or abandoned for a period of one year.” Cf. G.L. c. 40A, § 6, “A zoning... by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.”

9. In connection with the sale of certain assets in 2001, Lorusso Corp., a predecessor of PAC, entered into an agreement whereby it agreed to suspend the production of bituminous concrete for a specified period, five years. As a result of this agreement, the production of bituminous concrete at the Site was suspended at the end of 2002. [Note 3]

10. From the end of 2002 to the present, PAC has paid all property taxes on the Site, stored equipment and components on the Site or on nearby property controlled by PAC or Larusso Corp., and has maintained various permits relating to the production and sale of bituminous concrete.

11. In November, 2004 PAC applied for a building permit “to repair existing foundations and to install new foundations for the feed bins that were to be rebuilt.”

12. In December, 2004, the Building Inspector issued a building permit to “modify existing foundations and retaining walls at the asphalt plant.”

13. Bituminous concrete has not been produced on the Site since 2003, at the latest.

* * * * *

In its motion for summary judgment, PAC asks the court:

(1) To determine that bituminous concrete production is an as-of-right use permitted at the Site under the Zoning Bylaw, so long as the production does not create off-site impact beyond the standards set forth in § 3.4 of the Bylaw;

(2) In the alternative, to determine that PAC is subject to the prior nonconforming use standard, as laid out in the pre-1983 Bylaw § 3.1, and that, based on that standard, PAC has not abandoned bituminous concrete production for zoning prior nonconforming use purposes;

(3) Again in the alternative, if PAC is subject to the currently enacted standard for determination of prior nonconforming use protection, to determine that PAC neither has abandoned bituminous concrete production for one year, nor ceased production for more than two years; and

(4) Additionally, if PAC’s activities are entitled to protection as a prior nonconforming use, PAC asks the court to declare that its proposed reactivation plans do not constitute a substantial change or expansion in that use so as to require a finding or special permit.

In its cross- motion for summary judgment, the Town asks the court to enter judgment for the Town by declaring that bituminous concrete production, regardless of off-site impact, is not an as-of-right use in the Town, and that any protection of that use by PAC as a prior nonconforming use has been lost due to nonuse or abandonment under Bylaw § 3.1 and G.L. c. 40A, § 6.

Standard for Summary Judgment

Summary judgment is appropriate "where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002); See Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In determining whether genuine issues of fact exist, the Court must draw all inferences from the underlying facts in the light most favorable to the nonmoving party. See Attorney General v. Bailey, 386 Mass. 367 , 371 cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). The moving party has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 , 39 (2005). For any claim for which the moving party does not have the burden of proof at trial, the party may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communication Corp., 410 Mass. 805 , 809 (1991); Kourouvacilis, 410 Mass. at 716.

Bituminous Product Manufacture as an As-of-Right Use

In 1965, § 2.8 of the Town Zoning Bylaw permitted all industrial uses in industrial districts with only two exceptions. Junk yards were prohibited, and earth removal was permitted only by special permit. Beyond that, all industrial use was considered as-of-right--so long as off-site impact did not exceed the standards set out in §§ 3.6.1 and 3.6.2 (now combined in § 3.4) of the Bylaw. In 1967 the Town made several changes to § 2.8, including the amendment at issue here. Under the 1967 Bylaw amendment, the following language was inserted, under the general category of “Industrial Uses,” and designated as “[a]n excluded or prohibited use” in all districts in the Town: “Cement, Concrete and Bituminous Product Manufacture and similar operations causing Dust, Noise and Odor.” The parties’ dispute over the meaning of this language lies at the center of this case.

To arrive at the declaration to which the parties are entitled under G.L. c. 240, § 14A, this court’s initial task is to determine, as a legal matter, the meaning of this provision of the Town’s duly adopted Bylaw. Specifically, I must decide if this Bylaw prohibits all bituminous product manufacturing, or as PAC says, only bituminous product manufacturing that causes “dust, noise and odor” above the standards set forth in § 3.4 of the Bylaw. PAC, relying on the clause “causing dust, noise and odor” used by the Town Meeting when this prohibited use was added to the Bylaw in 1967, contends that the Bylaw should be read only to prohibit bituminous concrete production which causes off-site impact, and then presses on to argue that this off-site impact, to render the use prohibited, must be of the magnitude which exceeds the specific performance standards provided in § 3.4. Plainville contends that the Bylaw prohibits bituminous concrete production regardless of any off-site impact it may or may not cause. Using the principles of law which govern the interpretation of legislation, I conclude that bituminous concrete production is prohibited regardless of the magnitude and reach, off-site, of the impacts caused by the operation.

“‘We interpret a statute according to the intent of the Legislature,’ Commissioner of Correction v. Superior Court Dep’t of the Trial Court for the County of Worcester, 446 Mass. 123 , 124 (2006), looking first to the statutory language because it ‘is the principal source of insight into legislative purpose.’ O’Sullivan v. Secretary of Human Servs., 402 Mass. 190 , 194 (1988), quoting Bronstein v. Prudential Ins. Co., 390 Mass. 701 , 704 (1984). We will not expand or limit the meaning of a statute unless such is required by the ‘object and plain meaning’ of the statute. Canton v. Commissioner of the Mass. Highway Dep’t, 455 Mass. 783 , 789 (2010), quoting Rambert v. Commonwealth, 389 Mass. 771 , 773 (1983).” Norfolk & Dedham Mut’l Fire Ins. Co. v. Morrison, 456 Mass. 463 , 468 (2010).

In this case, the plain meaning of the Bylaw is that all bituminous product manufacturing is prohibited, regardless of the off-site impact produced or not produced. Any doubt about this conclusion can be dispelled by examining the grammatical structure of the language used. “The ‘rule of the last antecedent’ holds that, unless there is something in the subject matter, dominant purpose, or language of the statute that requires a different interpretation, ‘qualifying phrases are to be applied to the words or phrase immediately preceding and are not to be construed as extending to others more remote.’ Herrick v. Essex Reg’l Retirement Bd., 77 Mass. App. Ct. 645 , 650 (2010); Russell v. Boston Wyman, Inc., 410 Mass. 1005 , 1006-07 (1991) (quoting United States v. Ven-Fuel, Inc., 758 F.2d 741, 751 (1st Cir. 1985)).

Following this standard (and seeing nothing in the subject matter or purpose of the enactment to urge me to depart from it) I rule that the phrase “dust, noise and odor” applies only to “similar operations” and not “cement, concrete or bituminous product manufacture.” The legislative directive is to specify certain uses which are outright prohibited, including bituminous product manufacture, however benign might be their impact, and then to go further, expanding the list of prohibited uses also to ban “similar operations causing dust, noise and odor.” Those uses not specified may be prohibited under this enactment only if they cause some measure of dust, noise and odor, but cement, concrete, and bituminous product manufacture require no such additional litmus test. They are banned by definition. The language of this section of the Bylaw is clear and unambiguous; no other reasonable interpretation of the Bylaw exists.

PAC argues that the Bylaw is ambiguous and the court must look beyond its language to find the meaning, deriving it from external indicia of legislative intent, and by resort to historical interpretation of the Bylaw section within the Town. PAC argues that when Town Meeting adopted the change in 1967, the Town only intended to restrict industrial uses (even if specifically called out) which cause “dust, noise and odor,” and that this is shown by the Town’s building inspectors consistently interpreting the Bylaw in that way since then.

This argument fails first because this court is not required to look beyond the language of a bylaw where that language is clear and unambiguous, as is the case here. See Commonwealth v. DeBella, 442 Mass. 683 , 687 (2004) (“When the ordinary meaning of words yield ‘a workable and logical result, there is no need to resort to extrinsic aids’ in interpreting the statute,” quoting Hashimi v. Kalil, 388 Mass. 607 , 610 (1983)).

Second, were this Court to look outside the plain language of this section of the Bylaw, the legislative intent which PAC says is buttressed by a pattern of historical interpretation within the municipality is not consonant with the overall structure and meaning of the Bylaw, and so does not provide support for PAC’s position. The undisputed fact is that in 1965 all industrial uses, including bituminous product manufacturing, which exceeded the standards set out in the Zoning Bylaw §§ 3.6.1 and 3.6.2 were prohibited. Although reorganized, that restriction did not change in 1967, nor did the standards under it. This means that, at the earliest relevant time, there was a restriction, even when bituminous production might have been an ordinarily allowed industrial use, which rendered that use prohibited if it led to effects surpassing the performance standards of the Bylaw. Bituminous manufacturing which exceeded those standards were not permitted when the 1967 amendment went into effect. To the contrary, they were at that time already prohibited. To say, as PAC does, that the 1967 amendment to the Bylaw only restricts bituminous product manufacturing that causes “dust, noise and odor” would mean that the Town superfluously added to the Bylaw a restriction that already existed in the local zoning law. This cannot reasonably be suggested as the Town’s legislative intent. The interpretation must be, rather, as the Town contends--that with the 1967 amendment, all bituminous production uses became universally prohibited.

Nor can PAC assert with success that because the Town’s building inspectors historically may have interpreted the Bylaw in accord with PAC, the court must follow the same interpretation. The court is left ultimately with the task of providing the legal interpretation of local legislation, and is not bound by a contrary interpretation of a local enactment made by local administrators, no matter how consistent that contrary interpretation has been. See Building Commr. of Franklin v. Dispatch Communication of New England, Inc., 48 Mass. App. Ct. 709 , 715 (2000) (“[A] municipality is not estopped by the acts of its officers, including its building inspectors, from enforcing its zoning by-law”). While deference to building inspectors and other local official is certainly indicated, and their pronouncements and practice on matters of local law is to be followed in cases where the bylaw’s language is ambiguous, and fairly capable of multiple interpretations, that is not the case here.

The Bylaw is clear and unambiguous. The court can and must decide, as a matter of law, that the Bylaw as amended in 1967 prohibits outright bituminous product manufacturing anywhere in the Town.

Protection as a Prior Nonconforming Use Under the pre-1983 Bylaw Standard

PAC argues alternatively that its right to produce bituminous concrete is protected as a prior nonconforming use under G.L. c. 40A, § 6. This statute is intended to protect structures and uses in existence before the adoption of zoning bylaws that otherwise would prohibit those uses. Section 6's protections provide, as a matter of legislative indulgence, the counterbalance to zoning’s “general goal” of conformity (Rourke v. Rothman, 448 Mass. 190 , 197 (2007)). Section 6 shields parties who have relied on an ongoing particular use from being deprived of that use due to later enacted, and often unforeseeable, zoning ordinance changes outlawing those long-standing uses. Section 6, however, protects what is generally disfavored, and so is limited in its reach. Section 6 does not mandate a perpetual freeze on all local zoning laws in place when a given use began.

For prior nonconforming use protection to apply, the use must be in existence before notice is given of the potential bylaw change. G.L. c. 40A, § 6, first para. Once protected, however, a local ordinance or bylaw may set the standard by which that protection may be extinguished, subject always to the minimum requirements of G.L. c. 40A, § 6. “The stautory provisions in respect of nonconforming uses ... do not purport to authorize changes therein. The statute prescribes the minimum tolerance which must be given to nonconforming uses.” Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406 , 411 (1962); Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 670 (1987). Local zoning authorities have flexibility; they may choose abandonment or disuse, each independently, or instead may require both, as the standard for extinguishing prior nonconforming uses. Id. at 669.

In 1965, when PAC’s predecessor began bituminous concrete production, the Town’s chosen standard for extinguishing prior nonconforming use protection was abandonment for a period of one year under § 3.1 of the Zoning Bylaw. In 1983, the Town amended § 3.1 to its current standard: either abandonment or nonuse for one year. [Note 4] PAC argues, however, that it is not subject to this version of this section of the Bylaw because PAC began its operation before the 1983 amendment of § 3.1. PAC asserts that it is not at risk of losing protection for earlier use based merely on nonuse. PAC says it is subject only to the locally enacted standard of abandonment, as that was all that the provision in place dealt with in 1965, when the use on the Site began. This is a critical question for PAC, because the question of abandonment is far more fraught with factual nuance than when the issue is mere nonuse. If PAC is right, and only abandonment may cut off PAC’s prior nonconforming use protection, the court would face a more difficult inquiry than if the protection is lost simply because the use stopped for a long enough time.

I conclude that PAC is not legally entitled to rely on a position that only abandonment will suffice to take away PAC’s nonconforming use protection. Rather, PAC will have lost that protection simply upon proof that the protected use ceased, regardless of any intent also to abandon that use. This is so because PAC is subject to the 1983 amendment of Bylaw § 3.1, which made nonuse an independently sufficient ground for taking away prior nonconforming use protection. PAC did not discontinue production of bituminous concrete before the 1983 amendment of Bylaw § 3.1. Had PAC discontinued use prior to the 1983 Bylaw amendment, PAC’s protections might be analyzed differently, under the pre-amendment version of this section of the Bylaw. But, on the uncontested facts in the summary judgment record, this is not what occurred. PAC discontinued use of the Site for bituminous concrete production in 2002 because of a contractual agreement made then with a third party. PAC did so knowingly and deliberately; the decision to cease operations was decidedly in PAC’s best financial interest at the time. When, for understandable business purposes, PAC bound itself to stop production, it did so with the opportunity to investigate any provisions in the zoning laws as they then existed which would prevent PAC from restarting operations at the end of that period of voluntary nonproduction. PAC’s undertaking to stop production in 2002 was made well after the amendment of the local zoning law took effect, making cessation of use by itself enough to cut off protection for prior nonconforming use status.

It would not be in keeping with the overall goals of the law of prior nonconforming uses (and of section 6) to look back to the time when the use first began to learn what the Bylaw’s limitation on prior nonconforming protection was. If that were the correct approach, the Town would be unable ever to change its local law in a meaningful way. The Town could never enact further limits on the perpetuation of prior nonconformity, because the Town would be locked into the rules in place when a given use first began. The decision by the Town Meeting in 1983 to make nonuse (in addition to abandonment) an additional basis on which to take away nonconformity protection would be frustrated, if the rule was that such an amendment could not apply to any use already in effect, even a use which first stopped operation well after the amendment. Such a rule would effectively prevent the Town from implementing a proper legislative exercise of its zoning power. I conclude that the proper way to interpret and apply the nonconformity provisions of the Bylaw to the uncontested facts of this case is to decide that simple cessation of use for the requisite period cuts off the protection PAC had for that use. The 1983 amendment, making simple nonuse a grounds for ending protection of a prior nonconforming use, applies to PAC, which, in 2002, stopped using the Site for bituminous production.

Abandoned or Discontinued Use

Under Zoning Bylaw § 3.1, read in light of the minimum indulgence granted under G.L. c. 40A, §6, PAC’s prior nonconforming use protection is lost if PAC either has abandoned the use, or has discontinued the use, in either case for a period of two years. On summary judgment the question is whether the court can conclude, based on the undisputed facts, that the use of the Site for bituminous material production has, for that period, been either not used or abandoned.

It is well established law that nonuse, by itself, is not enough to prove abandonment of a prior nonconforming use. Derby Refining Co. v. Chelsea, 407 Mass. 703 , 709 (1990). For abandonment to be found, a party must have (1) intended to abandon the use, and (2) voluntarily acted in such a way that would implicate abandonment. Id. at 708. On the summary judgment record, I cannot reasonably determine whether PAC has or has not abandoned the use of the Site for bituminous concrete production. No facts, disputed or otherwise, have been presented by either party to confirm or refute an intention by PAC to abandon bituminous concrete production. The parties also disagree, in no small measure, as to the actions PAC has taken since the end of 2002 which would implicate or disprove abandonment.

The question of abandonment is, however, not a material one. On the uncontested facts in the summary judgment record, I can, and do, determine as matter of law that PAC has discontinued use of the Site for bituminous concrete production for more than two years, and so is not entitled to the protection of the Bylaw or of G.L. c. 40A, § 6 as a prior nonconforming use. Discontinuance under the law is gauged by an objective standard, which asks whether there has been “a simple cessation of a nonconforming use for a period of at least two years.” Bartlett, 23 Mass. App. Ct. 664 , 671. In Bartlett, the Appeals Court said that “[w]e think the Legislature, by its choice of the second criterion in §6, intended to authorize cities and towns to extinguish otherwise protected nonconforming uses if particular premises are not in fact used for the protected purposes for a minimum of two years.” Id., at 669. Proof of intention is not part of the analysis when nonuse is the basis on which extinguishment is asserted. While PAC’s intention to resume bituminous product manufacturing once it had gotten through its contractual commitment might be relevant on the question of abandonment, it is not on the question of mere nonuse. And mere nonuse suffices to cut off the protection for the prior nonconforming use under the law governing my decision in this case. For this reason, the facts which are somewhat in contest in the record, going to the steps taken to facilitate resumption of manufacturing on the Site after the restriction period ended, are without legal significance. Whether or not PAC contemplated resumption, and in fact went to efforts to be able to resume operations once the clock ran on its agreement, matters not for the purposes of preserving protection for the prior nonconforming use. The simple, emphatic stop to all production which took place for well more than two years, a fact not reasonably in dispute on this record, took away that protection as a matter of law. Even ifafter 2002 the property was kept up, and held ready to operate as it was before 2002, to produce bituminous material, the halt in that use sufficed to end protection for the prior nonconforming use. PAC’s decision to shut down production of bituminous material in 2002, carried out and continued for well more than the requisite two years, has ended that protection. Whether PAC fully dismantled the facility, or simply “mothballed” it, does not matter. After the second anniversary of the cessation of bituminous concrete production, the Site lost its protection under the Bylaw and Section 6. [Note 5]

Substantial Change or Expansion Requiring a Finding or Special Permit

PAC has asked the court to declare that PAC’s plans to reactivate its bituminous concrete plant are not a substantial change or expansion which would require first the securing of a special permit or finding as to the extent of the change or expansion and its impact on the neighborhood. However, because PAC is not entitled to produce bituminous concrete as-of-right or as a prior nonconforming use, there is no need for the Court to address this issue.


Applying summary judgment standards, the undisputed record facts require denial of PAC’s motion and the grant of the Town’s cross-motion; judgment is to enter in favor of the Town of Plainville. The Town’s Zoning Bylaw prohibits bituminous concrete production, regardless of the off-site impact that production may or may not cause. This use is not one allowed as of right. PAC, as a result of its lengthy voluntary discontinuance of that use, has lost any protection as a prior nonconforming use.

PAC’s Motion for Summary Judgment is DENIED. The Town’s cross-motion is ALLOWED.

Judgment accordingly.


[Note 1] Neither party stipulates in what zoning district the Site was in 1965.

[Note 2] It appears that typographical error infects the enacted words of this section of the Zoning Bylaw. Section 3.1 of the Zoning Bylaw reads as follows:

The lawful use of any structure or land existing at the time of any enactment or subsequent amendment of this By-Law may be continued although such structure or use does not conform with the provisions of this By-Law and any building, part of a building, or land, which at the time of adoption of the By-Law is being put to a lawful nonconforming use may be continued subject to the following provisions. (a) That the use of premises or the use of a structure ceases to be continued in non-conforming use, or abandoned for the period or one year.

[Note 3] Although no specific date is given, the end of 2002 appears to be the approximate time this agreement went into effect.

[Note 4] The parties agree that the one year period for disuse is superceded by the statutory requirement of two years. G.L. ch. 40A, § 6, third para.

[Note 5] This conclusion is consistent with other decisions of this court. See, e.g., Tedesco v. Allison, 11 LCR 327 , 328 (2003)(Sands, J.), applying Bartlett, noting that, consistently with s. 6, local zoning may cut off prior nonconforming use protection based on either abandonment or nonuse, and holding that, given the bylaw at issue, nonuse for two years alone terminated the protection. (“While it is hard to disassociate the use of the structure from the use of the sign panels, the structure's sole purpose appears to be a housing for the sign panels. Because the structure has not held sign panels for more than two years, its function has been discontinued.”).