MISC 15-000103 / MISC 15-000242

August 9, 2017

Worcester, ss.



Defendants PJM Family Enterprises, LLC ("PJM") and its owner, Dominic Murgo ("Murgo") operate a truck terminal on a lot located partially in the Town of Millbury, and partially in the City of Worcester. After an enforcement request by the plaintiff HAYR, LLC, ("HAYR") the owner of an abutting parcel that was approved for a large residential subdivision, the Millbury building commissioner ordered that the defendants cease and desist from operating the truck terminal, as it was in violation of the Millbury Zoning Bylaw. Upon the application of PJM, the Millbury Zoning Board of Appeals (the "Board") first granted a variance allowing PJM to use the property as a truck terminal; and at the further request of PJM, the Board then issued a corrected decision on June 10, 2015, that instead overturned the decision of the building inspector, and found that the use may remain by right as a continuation of a lawful, pre-existing, nonconforming use. HAYR has appealed the Board's decision pursuant to G. L. c. 40A, § 17.


On March 30, 2015, the plaintiff filed an appeal pursuant to G. L. c. 40A, § 17 of the Board's decision granting the variance. Subsequent to the Board's issuance of the corrected decision, on June 30, 2015, HAYR filed a second complaint in this court appealing the corrected decision pursuant to G. L. c. 40A, § 17. On September 2, 2015, the court consolidated these two cases, and indicated that any objection to the Board's ability to modify its original decision should be brought under Mass. R. Civ. P. 12(c); no such objection was subsequently filed. On November 1, 2016, HAYR filed a motion for summary judgment asserting that on the undisputed facts, the defendants' present use of the property is not a pre-existing nonconforming use protected by G. L. c. 40A, § 6. On December 1, 2016, defendants PJM Family Enterprises and Dominic Murgo filed an opposition, to which the plaintiffs filed a reply on January 9, 2017. On April 28, 2017, HAYR moved to supplement the summary judgment record with additional exhibits that had been discussed and agreed to at the April 18, 2017 summary judgment hearing. I took the motion under advisement following the hearing on April 18, 2017.


The undisputed facts established in the record and pertinent to the Motion for Summary Judgment, with all reasonable inferences drawn in the light most favorable to the non-moving party, are as follows:

1. Plaintiff HAYR, LLC purchased a lot in Millbury pursuant to a deed dated June 24, 2010, and recorded at the Worcester County Registry of Deeds (the "Registry") in Book 46511, Page 316.

2. On September 23, 2014 HAYR received approval from the Town of Millbury Planning Board, pursuant to G. L. c. 41, § 81K, et seq., for subdivision of its property into ninety-eight residential lots. The subdivision approval was not appealed and became final.

3. HAYR's property abuts 221 Southwest Cutoff, Worcester (the "Locus"), a property presently owned by the defendant PJM. PJM purchased 221 Southwest Cutoff pursuant to a deed dated February 15, 2012, and recorded with the Registry in Book 48541, Page 370.

4. The Locus is 5.79 acres in size, and straddles the border between Millbury and Worcester; as a result, a portion of the Locus is in Millbury, and a portion is in Worcester. The rear portion of the Locus is in Millbury, is approximately three acres, and lacks street frontage; the front portion of the Locus, improved with a building, is in Worcester, and has frontage along Southwest Cutoff (Route 20).

5. The Millbury portion of the Locus is located in the Millbury Suburban IV Zoning District. The Millbury Zoning Bylaw creating this zoning district was first adopted by the Town on February 5, 1957, and was approved by the Attorney General on September 5, 1957. [Note 1]

6. The aerial photographs in the record disclose the following progression of development on the Locus: in 1938, the Locus remained wooded and undeveloped, with a rectangular area near the rear, in the Millbury part of the Locus, cleared of trees but not paved or otherwise improved. By 1952, a small triangular portion at the front of the Locus in Worcester, abutting Route 20 (perhaps ten percent of the property's total area) was cleared, apparently paved, and improved by a small building on the northeastern edge of this cleared area near Route 20, entirely in the Worcester part of the Locus. The remainder of the Locus remained wooded or otherwise unimproved and undeveloped. [Note 2] By 1960, there were no changes of any note to the mostly uncleared and undeveloped state of the Locus, and it appeared much as it did in 1952. [Note 3]

7. Aerial photographs taken in 1970, 1971 and 1972 show additional cleared area in the vicinity of the building, entirely on the front part of the Locus in Worcester, and disclose vehicles that appear to be trucks, all parked on the front, Worcester part of the Locus. The rear, Millbury part of the Locus remains wooded, unpaved and otherwise unimproved and unoccupied in these photographs.

8. Corio Brothers Construction ("Corio Brothers") purchased the Locus in 1973, and began utilizing the property as a contractor's yard and truck terminal. Corio Brothers used the property as a truck terminal for large trucks and trailers that hauled construction and other materials. [Note 4] Corio Brothers' activity on the Locus included "storage, handling, processing, loading and unloading of various heavy equipment and construction material and equipment among other heavy equipment and material." This use was "intensive, open, and uninterrupted" until 2011. [Note 5] Corio Brothers also used the site itself as a landfill, clean fill, and storage site for rubble. They also operated an equipment rental company on the Locus.

9. Between 1982 and 2011, Corio Brothers entered into leases and/or agreements with a number of entities to allow them to use the Locus, including Anderson Moran Trailer & Equipment Corp., Margin Leasing Company, Specialized Machine Transport, Inc., and Mabey Bridge and Shore, Inc.

10. By 1985, the southern, rear portion of the Locus, in Millbury, was cleared for the storage of trailers and heavy equipment, and the existing building at the front of the property was demolished and replaced with a larger garage in a different location on the lot. [Note 6] The new garage is located in the northwest corner of the Locus, near the Route 20 frontage, and is located entirely in Worcester. Aerial photographs taken in 1995 and 1997 show clearing of the rear, Millbury portion of the Locus and incursion of vehicular parking onto the rear, Millbury portion of the Locus, but not all the way to the rear. Later aerial photographs, taken from 2001 through 2012, show the Locus for the first time to be fully cleared, mostly paved, and show the parking of trucks occurring on all parts of the Locus.

11. The defendants purchased the Locus from Corio Brothers on February 15, 2012.

12. Since purchasing the Locus in 2012, the defendants have used the Locus as a truck terminal for approximately forty "live-floor" trailers, which they use to haul municipal solid waste, single-stream recyclables, demolition debris, aggregate, heavy equipment, loam, compost, cardboard, newspapers, bottles and cans, asphalt millings, scrap steel, fill, ledge, rock, bark, mulch, and wood chips. [Note 7] Also stored on the site by the defendants are excavators, loaders, backhoes, fuel trucks and other vehicles and equipment, all of which are kept on the rear, Millbury portion of the Locus. The Locus is also used for screening of loam. [Note 8]

13. These trailers are stored on the Locus overnight. Trash is stored in these trailers overnight at least in emergency situations, such as if a delivery site were to unexpectedly shut down; it is disputed whether trash is stored overnight on a more regular basis. [Note 9]

14. The defendants use the entirety of the Locus, which is now fully cleared.

15. The truck terminal operates during the hours of at least 5:00 AM until between 3:00 PM and 6:00 PM. [Note 10]

16. This use occurs at least six days a week, and occasionally seven days a week. [Note 11]

17. Mechanics typically work in the garage until 9:00 PM, and occasionally work in the garage overnight.

18. Impact guns are used by the mechanics in the garage to service the defendants' trucks.

19. The defendants crushed rock on the Locus immediately after it was purchased in 2012. [Note 12] It is disputed whether the defendants continue to crush rock on the Locus through the present, although it is undisputed that they screen loam.

20. The Millbury building commissioner and zoning enforcement officer sent a cease and desist letter dated December 11, 2014 to PJM advising the defendants that the town had received a complaint regarding a zoning issue on the Locus.

21. Dominic Murgo met with the building commissioner on December 22, 2014.

22. On December 22, 2014, PJM filed an "Application for Appeal" with the Zoning Board of Appeals (the "Board") requesting that the Board "clarify nonconforming use or ask for variance to allow current use." [Note 13]

23. On February 18, 2015, PJM filed a "Petition Appealing Zoning Determination" requesting that the Board find that PJM may continue its use of the property as a pre-existing nonconforming use.

24. On February 25, 2015, a public hearing was held on PJM's application. The Board voted to approve the application, and issued a decision granting PJM a variance authorizing PJM to operate a truck terminal on the Locus.

25. On March 30, 2015, HAYR filed a complaint appealing the Board's decision pursuant to G. L. c. 40A, § 17.

26. On June 10, 2015, the Board issued a "corrected" decision which, rather than granting a variance, "grant[ed] the use of [the Locus] to continue their trucking operation it is a continuation of the grandfathered pre-existing, nonconforming use of the property and may be continued as of right." The Board found that "this granting does not cause substantial harm to the neighborhood, or [sic] does it nullify or substantially derogate from the intent of purpose of this by-law."

27. On June 30, 2015, HAYR filed a complaint in a second, separate action appealing the Board's corrected decision pursuant to G. L. c. 40A, § 17.


Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Boazova v. Safety Ins. Co., 462 Mass. 346 , 347 (2012); Mass. R. Civ. P. 56(c). "The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). The substantive law at issue in the case determines whether a fact is material. See Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006). Material facts bear on the outcome of the case. See Jupin v. Kask, 447 Mass. 141 , 145-146 (2006). Bare assertions and conclusions regarding a party's understandings, beliefs and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. See Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 728 (1989). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and offer evidence of specific facts establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson v. Time, Inc., supra, 404 Mass. at 17.

"[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim…The motion must be supported by one or more of the materials listed in rule 56 (c) and, although that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991).



The threshold issue is whether the plaintiff is aggrieved, and therefore has standing to bring this appeal under G. L. c. 40A, § 17. "Under the Zoning Act, G. L. c. 40A, only a 'person aggrieved' has standing to challenge a decision of a zoning board of appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). G. L. c. 40A supplies a presumption that "abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner" are aggrieved by a decision concerning another property. G. L. c. 40A, § 11. "The defendant, however, can rebut the presumption by showing that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect…Alternatively, the defendant can rebut the presumption by coming forward with credible affirmative evidence that refutes the presumption, that is, evidence that warrant[s] a finding contrary to the presumed fact of aggrievement, or by showing that the plaintiff has no reasonable expectation of proving a cognizable harm." Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570 , 573 (2016), quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006). If a defendant fails to offer sufficient evidence to rebut the plaintiff's presumption of standing, the abutter "is deemed to have standing, and the case proceeds on the merits." 81 Spooner Road, LLC, supra, 461 Mass. at 701. Once a defendant has successfully rebutted the presumption, the burden then shifts to the plaintiff, with no benefit from the presumption, "to prove standing by putting forth credible evidence to substantiate the allegations." Id. at 700. To do so, "[t]he plaintiff must 'establish—by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the rest of the community.'" Id., quoting Standerwick v. Zoning Bd. of Appeals of Andover, supra, 447 Mass. at 33.

It is undisputed that the plaintiff's property abuts the Locus. The plaintiff is thus entitled to a presumption of aggrievement, and the burden shifts to the defendants to rebut this presumption by coming forward with credible evidence indicating that the plaintiff will experience no aggrievement. See Picard v. Zoning Bd. of Appeals of Westminster, supra, 474 Mass. at 573. The plaintiff argues that the defendant can produce no evidence rebutting the plaintiff's presumption of standing on the bases of noise and odor, and that even if the presumption receded, the undisputed facts nonetheless demonstrate that the plaintiff will experience harm falling within the protection of the Zoning Act.

First, both noise and odor are interests protected by the Zoning Act and the Millbury Zoning Bylaw. Concerns related to both noise and odor are rooted in general welfare and fall under the umbrella of interests that the Zoning Act is intended to protect, thereby allowing an abutter to show aggrievement based on a noise- or odor-based harm. See Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 , 912 (2003); Rogel v. Collinson, 54 Mass. App. Ct. 304 , 315 (2002); Zall v. Zoning Bd. of Appeals of Salisbury, 73 Mass. App. Ct. 1103 (App. Ct. Oct. 31, 2008) (Rule 1:28 Decision). Moreover, the provisions of the Bylaw itself provide implicit protection against harms to these interests. Particular dimensional requirements, such as setback requirements, serve the implicit purpose of protecting property owners from such offensive intrusions by ensuring that any noise or odor generated on one property is sufficiently distanced from others. See Picard v. Zoning Bd. of Appeals of Westminster, supra, 474 Mass. at 574 (listing noise as a typical protected zoning interest); Aiello v. Planning Bd. of Braintree, 91 Mass. App. Ct. 354 , 366 (2017) (holding interest in limiting noise to be protected by bylaw's buffer zone requirements). The Bylaw here contains such dimensional requirements, plainly intended to provide adequate spacing between structures and uses on adjacent properties; this provides implicit protection against harms from noise and odor, and these may therefore serve as a basis for standing under G. L. c. 40A, § 17. The Bylaw also includes explicit protections against noise and odor to protect abutting property from uses in Industrial zoning districts. [Note 14] Those protections can be no less available when the complained-of use and the noise and odor generated by it is nonconforming and is located in a residential district, where such a use would ordinarily not permitted.

Though initially claiming in their opposition the existence of disputed facts as to the issue of standing, the defendants conceded at oral argument that the plaintiffs do indeed possess standing on the basis of the noise generated by the trucking activity on the Locus. This concession rightly reflects the defendants' failure to indicate evidence in the record disputing the existence of noise harming the plaintiff's property. Although defendants' concession itself disposes of this issue, the court nonetheless finds it worthwhile to briefly note why the defendants' previously submitted arguments failed to create such a dispute. In the defendants' opposition, they suggest the existence of a dispute as to whether noise harms the plaintiff by alleging, and providing support for, the following facts: that the business on the Locus operates approximately thirteen hours a day (though the garage operates later), for six days a week (though sometimes seven); that it has crushed rock in the past, but has not in recent years; that the large garage, where impact guns are used to service the trucks, is located on the Worcester portion of the property; and that other nearby industrial uses and highways might make it difficult for the plaintiffs to discern that noise is originating from the defendants' property rather than some other source. These particular facts do not serve to dispute the presumed fact that noise originating on the Locus disturbs the plaintiffs' property to a sufficiently harmful degree. Despite these qualifications, it remains undisputed that the commercial trucking activities on the Locus generate significant noise. [Note 15] Furthermore, Taniel Bedrosian, a member and manager of HAYR, testified that he was able to distinguish this trucking noise generated on the Locus from that occurring in the surrounding area. The defendants point to no evidence in the record disputing this fact. The defendants' opposition suggests only that Bedrosian is unable to conclusively determine that the noise originates from the Locus as opposed to other lots in the surrounding area. However, they offer no actual evidence in support of this contention, as the mere existence of other nearby uses is not sufficient to create a dispute on this point, and the simple unsubstantiated denial of an otherwise supported fact cannot generate a dispute precluding summary judgment. [Note 16] Likewise, it is immaterial for the purposes of standing that some of this noise may originate on the portion of the Locus situated in Worcester. Section 22.5 of the Bylaw provides that, where a property is split between two municipalities, "[t]he provisions of this Bylaw shall be applied to the portion of such lot in the Town of Millbury in the same manner as if the entire lot were situated in Millbury." Therefore, for the purposes of standing, noise originating anywhere on the Locus, even if on a particular section that lies in Worcester, may provide a basis for appealing a decision made by the Board concerning the Millbury portion of the same lot. [Note 17]

As the defendants concede that there is no dispute that the plaintiffs have standing on the basis of noise, and the evidence concerning the existence of such harmful noise is undisputed, the court need not address the plaintiff's additional claim that it has standing on the basis of noxious odors emitted from the defendants' property.

The Merits

In its decision, the Board concluded that the defendants are engaged in a lawful, pre-existing, nonconforming use that may continue as of right without any further relief. The court's inquiry in reviewing this decision is a hybrid requiring the court to find the facts de novo, and, based on the facts found by the court, to affirm the decision of the Board "unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Bd. of Appeals, 356 Mass. 635 , 639 (1970). This involves two distinct inquiries, the first of which looks to whether a special permit granting authority's decision applied incorrect standards or criteria. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). In this first inquiry, the court determines whether the decision is premised "on a standard, criterion or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives 'some measure of deference' to the local board's interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application." Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 73 (internal citations omitted). Only after determining that the decision was not based on a legally untenable ground does the court then proceed to the second, more deferential inquiry that examines whether "any rational view of the facts the court has found supports the board's conclusion…" Id. at 75. The court may not overturn the Board's decision unless "no rational view of the facts the court has found supports the [zoning board's] conclusion..." Id. at 74-75.

The continued existence of pre-existing nonconforming uses, and the effect of changes to those uses, are governed by Section 6 of G. L. c. 40A, which provides in relevant part as follows:

[A] zoning ordinance or by-law shall not apply to structures or uses lawfully in existence...but shall apply to any change or substantial extension of such use... 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 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.

G. L. c. 40A, § 6. Per the first sentence of Section 6, "a use achieves the status of nonconformity for statutory purposes if it precedes the coming into being of the zoning regulation which prohibits it." Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 529 (1990). See G. L. c. 40A, § 6. Furthermore, it is not enough for a pre-existing use merely to have been in existence. Under the statute, only uses that came into existence lawfully are exempt from current regulations. Bruno v. Bd. of Appeals of Wrentham, 62 Mass. App. Ct. 527 , 530-531 (2004). An illegal use does not acquire status as a lawful nonconforming use by virtue of the expiration of the six-year statute of limitations prescribed under G. L. c. 40A, § 7. See id. at 536-537; Patenaude v. Zoning Bd. of Appeals of Dracut, 82 Mass. App. Ct. 914 , 915 (2012). In order to be a lawful nonconforming use, the use must be "not violative of the by-law when it began," Stow v. Pugsley, 349 Mass. 329 , 334 (1965), or must have been exempt from the local bylaw or ordinance when it began. Gund v. Planning Bd. of Cambridge, 91 Mass. 813 , 817-819 (2017).

A use that commenced lawfully prior to the adoption of the ordinance or bylaw that renders it nonconforming may thus continue on without relief, as it is exempt from the provisions of the ordinance or bylaw. See G. L. c. 40A, § 6. However, any "change or substantial extension" to that nonconforming use is not protected; changes or extensions of nonconforming uses are permitted only if "the extensions or changes themselves comply with the ordinance or by-law, and [the uses] as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming [uses]." Cox v. Bd. of Appeals of Carver, 42 Mass. App. Ct. 422 , 426 (1997). "The burden is on the property owner to prove 'the requisite similarity between the [proposed] use and the original nonconforming use' so as to have it protected as a prior nonconforming use." Almeida v. Arruda, 89 Mass. App. Ct. 241 , 244 (2016), quoting Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd., 385 Mass. 205 , 212 (1982). See Falmouth Auto Ctr., Inc. v. McNamara, 23 LCR 268 , 271 (Mass. Land Ct. 2015) (Speicher, J.).

The Board found that the PJM's use of the property as a truck terminal "is a continuation of the grandfathered, preexisting nonconforming use of the property and may be continued as a matter of right," and that that "this granting does not cause substantial harm to the neighborhood, or [sic] does it nullify or substantially derogate from the intent of purpose of this by-law. [Note 18] HAYR makes no argument that the Board selected an incorrect legal standard or bylaw in reaching this conclusion. HAYR thus acknowledges that the Board applied § 6 in evaluating the propriety of the defendants' present use. Though the Board made a finding of no substantial detriment to the neighborhood, thus satisfying the second required finding of § 6, it further determined that no other relief was necessary. Viewed through the proper lens of § 6's standard, the Board thus implicitly found that no change or substantial extension of the use had occurred, as § 6 requires not only a finding of no substantial detriment but also compliance with the bylaw (and thus the issuance of variances) in the event of such a change or substantial extension. HAYR's argument on summary judgment challenges these findings under the second stage of the Britton analysis in which the court must determine whether the Board's decision is supported by any rational view of the facts. See Britton v. Zoning Bd. of Appeals of Gloucester, supra, 59 Mass. App. Ct. at 73. HAYR first argues that the Board's preliminary finding of the existence of any "grandfathered, pre-existing nonconforming use" at all is not supported, as the defendants will be unable to provide evidence at trial of any legal use existing at the time of the enactment of the relevant bylaw; alternatively, they argue that the defendants will be unable to demonstrate that whatever use did exist has not experienced a change or substantial extension. In either of these scenarios, § 6 would mandate application of the Bylaw's requirements to the defendants' property; HAYR therefore contends that under any rational view of the undisputed facts, the property's current nonconforming use may not continue as of right absent additional relief from the requirements of the Bylaw, and the court may find as a matter of law that the Board's contrary conclusion was arbitrary and capricious, and legally untenable.

Although the parties dispute the exact contours of the defendants' present use, it is undisputed that the current use does not conform to the Bylaw's requirements for the district in which the Locus lies. [Note 19] As a threshold matter, the court must establish the point at which the defendants' present use became nonconforming, so that it may then determine the extent of use at that particular time. The applicable year to which the court must look in this respect is 1957, since that is the year Millbury first enacted a bylaw rendering commercial uses, including the defendants' current use, nonconforming in the Suburban IV District in which the Locus lies. In this district, the 1957 Bylaw allowed all uses permitted in the existing residential district, plus sand and gravel pits upon approval of the Board of Appeals, airfields, radio stations, veterinary hospitals, and milk processing plants. [Note 20]

It is undisputed that the defendants' particular present use never came into conformity with the Bylaw at any later point after this initial enactment. [Note 21] Nor do the defendants contend that their protected status is derivative of some other use that was conforming post-1957, but subsequently became nonconforming. [Note 22] Accordingly, the defendants acknowledge that their present use, or one that is sufficiently similar, must have been in existence in 1957 in order to receive the grandfather protection of § 6 and in order to continue today as of right. [Note 23] HAYR first contends that there is no admissible evidence that there was any use of the Locus whatsoever in 1957, when the type of use now employed by the defendants became nonconforming; it argues that the court may therefore determine as a matter of law that the defendants' present nonconforming use could not have acquired § 6 protection, and cannot continue. It contends in the alternative that, even if the defendants can prove some use, the defendants will be unable to produce any evidence showing that the use in 1957 was at all similar in purpose and extent to the present use.

As the defendants bear the burden of proof, HAYR need not present affirmative evidence entirely negating an element of the defendants' claim, but must point to some material indicating that evidence on a particular element is unlikely to be forthcoming at trial. See Kourouvacilis v. General Motors Corp., supra, 410 Mass. at 714. HAYR argues that the only evidence concerning the state of the Locus in 1957 is an aerial photograph taken in 1952 showing that a small, triangular sliver of the Worcester portion of the Locus abutting Route 20, perhaps one tenth of the Locus' total area, is cleared, and that there is a small building on the eastern portion of this cleared area; and another aerial photograph, taken in 1960, showing that the same extent of clearing and same small structure existed as of 1960. [Note 24] These photographs show the Millbury portion of the Locus to be mostly wooded, and with no apparent structures, paving, or any parked vehicles. Though HAYR essentially contends that the minute extent of development on the Locus compels an inference of non-use, this is not the case. On summary judgment, all reasonable inferences must be made in favor of the non-moving party. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 , 395 (2016). It is reasonable to infer from the apparent improvement of the property, however minor, that some attendant use was occurring on at least the Worcester portion of the Locus as early as 1952. These two aerial photographs taken together consequently present a minute snippet of evidence indicating the existence of at least some use existing on the property capable of acquiring protection as pre-existing and nonconforming under § 6, notwithstanding the fact that they show use only of a part of the Worcester portion of the Locus. "Any doubts as to the existence of a genuine issue of material fact are to be resolved against the party moving for summary judgment," and the court is therefore compelled to find a dispute of fact, however tenuously obtained, as to the existence of at least some use on a small part of the Locus as of 1957. Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824 , 830 (2016).

Nonetheless, turning to the plaintiff's alternative argument, a dispute concerning the existence of some use remains immaterial, as the defendants have failed to introduce any well-supported facts indicating a likelihood that the present use is not, in fact, a "change or substantial extension" of the use existing in 1957. See G. L. 40A, § 6. Even where a particular nonconforming use has acquired the exemption from zoning provided by § 6, any such change or substantial extension of that use is not protected, and may continue only with receipt of the applicable zoning relief. See id.; Derby Ref. Co. v. Chelsea, 407 Mass. 703 , 712 (1990). A change that is so substantial either in degree or physical expansion so as to constitute, in effect, a different use, will be determined to be "different in kind" in its effect on the neighborhood, and therefore not entitled to § 6 protection. Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 655 (1973), and cases cited. To determine whether a particular use is a change or substantial extension of a prior nonconforming use, the court looks to "(1) 'Whether the [current] use reflects the 'nature and purpose' of the [prior] use,' (2) 'Whether there is a difference in the quality or character, as well as the degree, of use,' and (3) 'Whether the current use is 'different in kind in its effect on the neighborhood.'" Derby Ref. Co. v. Chelsea, supra, 407 Mass. at 712, quoting Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966). These requirements are conjunctive, and the failure to satisfy any of these three prongs mandates a finding that the original use has changed or been substantially extended. See Powers v. Building Inspector of Barnstable, supra, 363 Mass. at 658 n.4; M. Bobrowski, Massachusetts Land Use and Planning Law § 6.04[B] (3d ed. 2011) ("Powers also indicates that a proposed modification that trips any of the tests will constitute a change of use."). Though this test is often heavily fact-dependent, summary judgment may nonetheless be appropriate where the undisputed facts plainly indicate a failure of one of the prongs. See, e.g. Exxon Co., U.S.A. v. McDonough, 8 LCR 13 , 16 (Mass. Land Ct. 2000) (Scheier, J.); Luttazi v. Luttazi, 8 LCR 298 , 299 (Mass. Land Ct. 2000) (Kilborn, J.).

Whether there is a difference in the quality, character, and degree of use. The court turns initially to the second prong of the test, as it is on application of that standard that a change or substantial extension is most plainly apparent from the undisputed facts. This second step directs the court to examine '[w]hether there is a difference in the quality or character, as well as the degree, of use.' See id. "The second prong may be satisfied when a proposed use is 'reasonably adapted to the prior use,' is not 'extraordinary or unreasonable,' and does not 'change the fundamental nature of the original enterprise.'" Almeida v. Arruda, supra, 89 Mass. App. Ct. at 246, quoting Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 411 (1995).

Significantly, an expansion of the physical area in which a use takes place will typically fail to meet these criteria. "It is generally accepted that one may not as of right alter the structure or extend the area devoted to a nonconforming use..." Sullivan v. Bd. of Appeals of Harwich, 15 Mass. App. Ct. 286 , 288–289 (1983). While it may be permissible to increase the intensity of a use within its original area, any significant expansion beyond those bounds to a previously unused area is an unreasonable change in degree. See id.; Billerica v. Quinn, 320 Mass. 687 , 689 (1947) ("The extension of a use to which the statute refers is extension of the area devoted to the use…"); Falmouth Auto Ctr., Inc. v. McNamara, 23 LCR 268 , 271 (Mass. Land Ct. 2015) (Speicher, J.); Skydell v. Tobin, 18 LCR 174 , 180 (Mass. Land Ct. 2010) (Long, J.). See also Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass. App. Ct. 80 , 85 (2002).

"Thus, in addition to determining the existence and extent of the nonconforming use as of the date it became nonconforming, there must also be a determination of the physical area 'devoted to that use' at that time." Skydell v. Tobin, supra, 18 LCR at 180. Here, as shown in the 1952 aerial photograph, only a very narrow, small triangular portion of the Locus near Route 20 was developed as of that date, with only a small building present on the northeastern border of the Locus. The 1960 aerial photograph shows no change in the physical development of the Locus. The 1970, 1971, and 1972 aerial photographs show slightly more land cleared beyond the original narrow strip, and the appearance of trailers on this small cleared area. However, as of 1972, more than two-thirds of the property, including the entire portion of the Locus located in Millbury, remained unchanged, undeveloped, largely wooded, and accordingly, plainly unused for trucking activities or any other comparable use. [Note 25] The defendants have presented no evidence suggesting a contrary conclusion. [Note 26]

Even making all reasonable inferences in favor of the defendants, the extent of use shown on the 1960 aerial photograph represents the maximum extent of the area that could have been in use in 1957, and thus the area in which a protected use could continue as a matter of right. The undisputed facts show that the area on the Locus devoted to nonconforming use has increased substantially since this time. The Locus is, at the present time, entirely cleared. Its entire surface is devoted to the storage of trucks, trailers, construction equipment, and construction materials, occupying at least several times the developed area existing at the time that the Bylaw was adopted. Except for a small area near Route 20 (which is entirely in Worcester), all of this expansion occurred after adoption of the Bylaw in 1957. Also notable is the existence of a new structure on the property that is significantly larger than that depicted by the aerial photographs as existing prior to 1972. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 658 n.4 (1973) (noting cases holding that "existence of a lawful nonconforming use does not permit the erection of additional buildings for the extension or enlargement of that use."). The undisputed facts in the record therefore demonstrate that the defendants' present use represents a significant physical expansion of the area devoted to the use as it existed in 1957. Entirely aside from consideration of the underlying purpose of this use, and even discounting the fact that the use as it existed in 1957 was entirely in Worcester, with none of it located on the Millbury portion of the Locus, such a pronounced physical expansion necessitates a finding of change or substantial extension of the degree of use as a matter of law. See Sullivan v. Bd. of Appeals of Harwich, supra, 15 Mass. App. Ct. at 288–289; Billerica v. Quinn, supra, 320 Mass. at 689.

Whether the current use reflects the nature and purpose of the prior use. With respect to the first prong of the analysis, HAYR likewise argues that the underlying purpose and nature of the present use is substantially different from that which originally became nonconforming under the 1957 Bylaw. HAYR points first to the existence of the aerial photographs submitted by the parties showing the historical development of the site from 1938 to the present. The aerial photographs indicate that the site was barely used in 1957 at the time that the Bylaw came into effect, and these photographs indicate that the site at that time was not used as a truck terminal, construction materials storage yard, or anything remotely similar. [Note 27] This is in stark contrast to the undisputed present extensive use of the property as a truck terminal. As HAYR argues, this evidence indicates that the nature and purpose of the present use of the property is a change from that in existence in 1957, and therefore a change from the use originally protected under G. L. 40A, § 6.

The defendants contend that they indeed have introduced evidence indicating that, to at least some degree, there was a use in existence in 1957 that was sufficiently similar to that presently taking place. As their proof on this point, the defendants cite to the depiction of the Locus in the 1952 aerial photograph, and a recitation of the history of the property contained within an environmental report. They argue that this aerial photograph together with the environmental report supports a finding of the presence of both a filling station and a major sand and gravel mining operation on the Locus prior to 1957, and contend that the present use bears sufficient similarity to a sand and gravel mining operation to create a dispute of fact as to whether it is a change or extension of that use. The report in question is a Phase I Environmental Report, prepared by CMG Environmental, Inc. in 2011, apparently in connection with the defendants' purchase of the property. However, HAYR has objected to the admissibility of the report for the truth of the statements contained therein. [Note 28]

I agree that this report cannot be relied upon as presented, and I do not consider this report as part of the summary judgment record. Rule 56(e) requires a party moving for or opposing summary judgment to support its proffered facts with affidavits made on personal knowledge, and documents referenced in those affidavits must be sworn or certified. See Mass. R. Civ. P. 56(e); Commonwealth v. Duddie Ford, Inc., 28 Mass. App. Ct. 426 , 435 (1990) (reversed on other grounds); Commonwealth v. La Corte, 373 Mass. 700 , 704 (1977). The failure to submit evidence in proper form presents the "fundamental problem…that there [is] no basis for the judge to conclude that the documents [are] what they purported to be." Galena v. Commerce Ins. Co., 2001 Mass. App. Div. 222 (Dist. Ct. 2001). If documents are submitted to the court, unauthenticated and without adherence to this rule, it is proper for the court to disregard them in its consideration of a motion summary judgment. See Portfolio Recovery Assocs., LLC v. Metccalf, 2015 Mass. App. Div. 190 (Dist. Ct. 2015); Howard v. IKO Mfg., Inc., 2011 Mass. App. Div. 191 (Dist. Ct. 2011); Cruickshank v. Commerce Ins. Co., 2004 Mass. App. Div. 109 (Dist. Ct. 2004). Here, the Phase I Report was submitted alone, accompanied by no authenticating affidavit, unsworn and uncertified. This is a procedural deficiency that itself prevents the court from considering the report. Moreover, the presentation of such unauthenticated documents lacking any accompanying affidavit is problematic for reasons beyond the procedural, as reliance on statements within such submissions for their truth raises additional hearsay concerns. See Sanabia v. Travelers Ins. Co., 1999 Mass. App. Div. 46 (Dist. Ct. 1999). The defendants attempt to rely on the statements contained within the report concerning the past use of the property, but if so offered for their truth, those out-of-court statements are bare hearsay falling within no cognizable exception. See id.; Roe v. Federal Ins. Co., 412 Mass. 43 , 44 n.4 (1992). Likewise, the report's frequent recitation of information contained in other documents outside the record is double hearsay. A party may not rely on hearsay statements in order to create an issue of material fact defeating summary judgment. See Madsen v. Erwin, 395 Mass. 715 , 721 (1985). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Id., quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972). The information that defendants cite within the report cannot be relied upon to generate a genuine factual dispute, unless that information appears within or is incorporated into the sworn affidavit of one with personal knowledge of those particular facts. [Note 29]

Accordingly, the only evidence to which the plaintiffs can point to demonstrate that there has been no change in the nature and purpose of the use is the 1952 aerial photograph depicting the state of the Locus. [Note 30] It cannot be reasonably inferred from this aerial photograph, as the defendants argue, that a sand and gravel mining operation or any other use even remotely comparable to a truck terminal existed on the Locus in 1952. This cannot alone serve to create a dispute of fact as to the existence of a use sufficiently similar in nature and purpose to the defendants' present use.

Furthermore, it is worth nothing that, had the Phase I Environmental Report been properly authenticated, with the information contained therein on which the defendants wish to rely properly supported, this result would be unchanged. The statements within the report, if taken for their truth, serve only to suggest use of the Locus prior to 1957 as a small gasoline filling station, and the defendants' present use is, as a matter of law, a change in purpose and quality from this use. In the Summary section of the report, it states that "[t]he Site most recently from 1979 to 2011 housed trucking and heavy construction companies. These companies stored fuel for their vehicles and equipment on site. Prior to those uses, the northern portion of the site operated as a gasoline filling station from around 1949 to 1950 through at least the late 1950s. Available evidence indicates the Site was undeveloped for commercial use in 1938. CMG was not able to determine when the filling station ceased operation…" Consistent with this use, the "Street Directories" section of the report similarly indicates that in 1956, as indicated by the city directory listings, the site was listed as "Fred Mills gas station." This matches the use suggested by the 1952 aerial photograph offered by the defendants, which shows only a very small portion of the Locus abutting Route 20 to be cleared, with a small building near the road. A small filling station is no more a cognizable predecessor to a large truck terminal for § 6 purposes than a tailor shop doing some cleaning of clothes is to a large dry cleaning plant. See Marblehead v. Rosenthal, 316 Mass. 124 , 128 (1944).

The defendants contend that the report shows that in addition to the presence of a filling station, a sand and gravel mining operation simultaneously existed on the Locus prior to 1957; they thus argue summary judgment to be inappropriate on the basis that sand and gravel mining is sufficiently similar to the defendants' present use as a truck terminal to create a dispute of fact as to whether the latter is on its face a change or substantial extension of the former. However, even taking all reasonable inferences in favor of the defendants, the report is devoid of any indication that any part of the Locus was used for a sand and gravel mining business, nor do any of the aerial photographs support such an inference. The report does indeed refer to the existence of such an operation in the area; yet these references, and few they are, clearly refer to neighboring properties.

First, the report cites the 1964 city directory as listing a nearby property as "Direnzo Brothers Sand & Gravel (believed to be NE of Site, approximately in the 2011 location of 190- 200 southwest cutoff" (emphasis added). Not only does a 1964 listing bear limited relevance to the pre-1957 use of the Locus, it clearly speaks to the use occurring on a neighboring property rather than the Locus itself. The report's analysis of various aerial photographs further indicates a sand and gravel operation adjacent to, rather than on, the Locus. In describing a 1952 aerial photograph, the report states that: "This aerial shows a building sitting at the easterly end of a triangular area of cleared land along Route 20. This building's location is approximately the current location of the driveway on the easterly portion of the site. An open area (possibly a sand & gravel mining operation based on its appearance) abuts to the east." An examination of the 1952 aerial photograph submitted by the parties, [Note 31] overlaid with the outline of the boundary of the Locus, very clearly shows that the building described sits directly on the eastern boundary of the Locus, and the open area described as "possibly a sand and gravel mining operation" is further to the east and beyond the bounds of the Locus, situated instead on another property lying to its northeast. In describing a 1995 aerial photograph, the report further states, "The sand and gravel pit to the north is partly converted to commercial use (a warehouse building and boats or other items stored outdoors)" (emphasis added). To the north of the Locus would be across Route 20.

These statements indicate only that whatever sand and gravel operations were in the area existed at a property abutting the Locus, and perhaps at another property across Route 20, but not at the Locus itself. The report contains no other reference to the existence of a sand and gravel operation. These references do not support the defendants' claimed fact that a sand and gravel operation existed on the Locus at the time the 1957 Bylaw went into effect; even if the references in the report are admissible and taken to be true, and all reasonable inferences are made in favor of the defendants, they at most indicate only that such an operation or operations existed on neighboring properties. [Note 32] The report could not, if relied upon, create a dispute of fact as to the existence of such a use on the Locus.

Thus, were I to consider the information in the report, the record would contain support only for the lone additional fact that, in 1957, the small building and cleared area on the Locus operated as a gasoline filling station. Though evidence tending to show the existence of a filling station may indeed generate a question of fact as to whether that particular use originally acquired § 6 protection, there nonetheless remain no facts in dispute material to the question whether the present use may continue to claim the benefit of that same protection. As noted above, where a pre-existing, nonconforming use undergoes a change in nature or purpose, its continued existence is no longer protected under § 6. See Derby Ref. Co. v. Chelsea, supra, 407 Mass. at 712; G. L. c. 40A, § 6.

I find and rule on the undisputed facts that the defendants' current use of the entire Locus as a truck terminal for forty live-floor trailers that transport municipal waste, and storage of other construction vehicles and construction materials, is different in purpose and nature from a use of the property as a gasoline filling station on a small portion of the Locus. The function of one is limited to the provision of fuel to vehicles, while the purpose of the other is to provide the myriad services attendant to the maintenance and operation of a large fleet of trucks. It is undisputed that this includes the maintenance and repair of vehicles, storage of construction materials, and on rare occasions, overnight storage of waste. Furthermore, the exponential physical expansion of the area occupied would render the current use different in kind in any event. It is true that in evaluating a motion for summary judgment, all reasonable inferences are to be made in favor of the non-moving party. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., supra, 474 Mass. at 395. Yet equating a gasoline station on a small part of the property, even had it been located on the Millbury portion of the Locus, to the intensive trucking operation presently underway on the entire property is resoundingly unreasonable, and is not an inference that it is within the power of this court to make.

Therefore, the undisputed facts demonstrate, and the court so finds and rules, that the defendants' present use differs in purpose, character, and physical extent from that use which originally received protection under § 6 in 1957, and may not continue under the aegis of that statute. See Derby Ref. Co. v. Chelsea, supra, 407 Mass. at 712.


Based on the undisputed facts in the record, the defendants have failed to indicate that any evidence will be forthcoming at trial tending to show that their present nonconforming use is not a change or substantial extension of the use protected under G. L. c. 40A, § 6. Accordingly, the Board's decision finding that the defendants' present use of the Locus as a truck terminal is grandfathered, and may continue without receipt of additional zoning relief, was arbitrary and capricious, and legally untenable, and must be ANNULLED.

Judgment will issue accordingly.


[Note 1] As discussed further below, though this date was initially disputed in the defendants' opposition, defense counsel conceded at oral argument that the Bylaw was indeed adopted in 1957.

[Note 2] See Plaintiff's Supplemental Submissions. In their response to the plaintiff's statement of material facts, the defendants dispute that so little of the property was cleared at this time; however, they do so only by contending that the aerial photographs included in the summary judgment record are not clear enough to make this determination, and the court does not agree. The defendants also cite to a Phase I Environmental Report which, as discussed in greater detail below, is not admissible, nor does it contradict the extent of the claimed clearance.

[Note 3] Aerial photographs, with the property boundary of the Locus superimposed, were added to the summary judgment record by motion of the plaintiff, which was assented to by the defendant's attorney in an email to the court and opposing counsel on May 15, 2017. The parties had likewise agreed at the hearing of the motion for summary judgment that these photographs, with the superimposed property boundary, may be relied on by the court.

[Note 4] Plaintiff's Statement of Material Fact, and Defendants' Response, No. 24.

[Note 5] Exh. 36 p. 19 (Defendant Dominic Murgo's answers to interrogatories).

[Note 6] Plaintiff's Statement of Material Fact, and Defendants' Response, No. 33.

[Note 7] Plaintiff's Statement of Material Fact, and Defendants' Response, No. 27.

[Note 8] Exh. 36, p. 11 (Defendant Dominic Murgo's answers to interrogatories).

[Note 9] Plaintiff's Statement of Material Fact, and Defendants' Response, No. 30.

[Note 10] Plaintiff's Statement of Material Fact, and Defendants' Response, No. 31. The total hours of normal operation are disputed.

[Note 11] Plaintiff's Statement of Material Fact, and Defendants' Response, No. 31.

[Note 12] How long this activity continued for, and whether it currently occurs, is disputed.

[Note 13] Exh. 26.

[Note 14] Exh. 8, Town of Millbury Zoning Bylaws, Section 35.

[Note 15] At oral argument, defense counsel indicated that "there is noise, of course, there is not going to be evidence that there is no truck noise," and conceded that one standing on the plaintiffs' property would be able to hear truck noise. Also see Defendants' Statement of Material Facts, Response 8; defendants objected on the grounds that "the plaintiff cannot definitively establish that the alleged noises he heard is [sic] from activities occurring on the Millbury portion of the [Locus]", but did not indicate any dispute that there was, in fact, noise. Moreover, at oral argument the court inquired whether the defendants were arguing that there was so much noise already in the area that the noise generated by the defendants was immaterial; defendants' counsel replied "No, I am not saying that."

[Note 16] The defendants indicated that they intended to call Michael O'Hara, a real estate appraiser, as an expert witness at trial to testify to this fact. However, the defendants have offered no affidavit by O'Hara in opposition to the present motion; moreover, it is unclear why O'Hara's experience as an appraiser qualifies him to testify on a subject typically requiring the expertise of an acoustical engineer.

[Note 17] Whether certain activities occur on the Worcester portion or the Millbury portion certainly impacts Millbury's ultimate ability to prohibit those activities; however, for the purposes of the court's analysis of standing, harms generated on any portion of the single parcel may serve as a basis of cognizable aggrievement.

[Note 18] Complaint, Exh. 2.

[Note 19] The defendants disputed the statement of fact offered by HAYR which states this, but explained that the dispute was because the defendants believe that the use may continue as a pre-existing nonconforming use; in doing so, however, they necessarily acknowledge that the use does not comply with the Bylaw.

[Note 20] Before a zoning bylaw may take effect, "it shall be approved by the attorney general or ninety days shall have elapsed without action by the attorney general after the clerk of the town…has submitted to the attorney general a certified copy of such bylaw with a request for approval..." G. L. c. 40, § 32. In their opposition, the defendants initially disputed that this 1957 Bylaw was ever approved by the Attorney General as required by G. L. c. 40, § 32, and contended that it was therefore not effective for the purposes of rendering any use nonconforming; they maintained instead that the operative date for the purposes of determining the existence of a use is either September 30, 1974 or April 5, 1986, at which times the zoning ordinance was subsequently amended. However, HAYR has presented two letters sent from the Attorney General's office to the Millbury Town Clerk, respectively obtained from the Millbury Town Records and the Attorney General's office itself, indicating approval of the Bylaw in 1957. It should be noted that there is a discrepancy as to the specific date in 1957 on which approval occurred: the letter obtained from the Town records is dated April 26, 1957, while the letter contained in the Attorney General's records is dated September 5, 1957. Nonetheless, confronted with this evidence, the defendants stated at oral argument that they do not dispute that the Bylaw became effective at some point in 1957. In light of this concession, making all reasonable inferences in favor of the defendants, the court may consider it undisputed for the purposes of summary judgment that the Bylaw came into effect at the latest on September 5, 1957.

[Note 21] In the current version of the Bylaw, each provision indicates the date of past amendments to that particular provision. HAYR has supplied the amendments relevant to uses allowed in the Suburban District; none of these amendments brought the type of use now occurring on the Locus into conformance.

[Note 22] The defendants' opposition initially argued that they derived their protection from the use of the Corio Brothers Construction in the 1970's. However, they premised this upon the assumption that the 1957 Bylaw was not in effect at that point; thus, they asserted that the Corio Brothers use was thus initially conforming, and became nonconforming only when the bylaw actually came into effect years later. The defendants have since conceded that the 1957 Bylaw was indeed validly enacted, mooting their claim to acquiring § 6 protection through Corio Brothers' use.

[Note 23] This acknowledgement was made at oral argument, though the defendants' opposition, as noted above, initially argued to the contrary.

[Note 24] Plaintiff's Supplement to the Summary Judgment Record, Exh. A.

[Note 25] These aerial photographs do not, as the defendants suggested at oral argument, appear to show the existence of a sand and gravel mining operation on the Locus. While such an operation appears to have been occurring nearby, the aerial photographs are clear in depicting no such use on the Locus itself.

[Note 26] Defense counsel conceded at oral argument that clearing of the Locus had indeed occurred, and that she believed that it occurred during the Corio Brothers' occupation, which began in 1973.

[Note 27] Though not specifically referenced by HAYR in its motion, the court also notes that in PJM's response to HAYR's first set of interrogatories, it stated that "the Premises have been used from 1973 to the present as a truck terminal and heavy equipment yard…"

[Note 28] Though HAYR did not file a motion to strike, its objection articulated at oral argument to the admissibility of the information within the report on which the defendants rely is nonetheless noted and considered by the court. When a party does not move to strike such defective materials, it is within the discretion of the court to either allow or exclude them. See Fowles v. Lingos, 30 Mass. App. Ct. 435 , 439 (1991).

[Note 29] The defendants at oral argument acknowledged the deficiency with their submission of the report alone, and assured the court that they planned on rendering this information admissible at trial through the testimony of the author of the report. However, the prediction that they will be able to do so is not sufficient to bring the statements in this document within the realm of admissibility for the purposes of avoiding summary judgment; the defendants cannot create a dispute of fact through evidence that they hope may become, but cannot now be, a part of the record. Furthermore, even if the author of the report were to testify, the statements in the report regarding past use of the Locus are not purported to be based on the author's personal knowledge.

[Note 30] It should be noted that the aerial photographs suffer from the same procedural deficiency as the report. However, neither party objected to the aerial photographs, and both relied upon them rather heavily. The court therefore considers them, as it is within its discretion to do so when there has been no motion to strike. See Fowles v. Lingos, 30 Mass. App. Ct. 435 , 440 (1991).

[Note 31] The report itself as submitted did not include the aerial photographs that it described. The plaintiffs later separately submitted a series of aerial photographs that included one aerial photograph from 1952. It is not clear whether this is the same photograph described in the report; nonetheless, even if different, an aerial photograph from the same year as the one described in the report is pertinent to the interpretation of the report's statements.

[Note 32] This is likewise consistent with what is depicted on the aerial photographs, which appear to show a significant mining operation on a neighboring property, but not on the Locus itself.