Home ATTLEBORO SAND & GRAVEL CORP. v. THE CITY OF ATTLEBORO

MISC 14-486245

October 9, 2018

Bristol, ss.

CUTLER, C. J.

JUDGMENT

Plaintiff Attleboro Sand & Gravel Corporation ("ASG") brought this action under G.L. c. 240, § 14A and G.L. c. 231A, § 1, seeking a declaration that a bituminous concrete (asphalt) plant (hereinafter referred to as an "asphalt plant") was permitted by right in the Industrial Business Park ("IBP") District under the Attleboro Zoning Ordinance in effect before June 4, 2015. [Note 1], [Note 2] The case was tried on October 30, 2017. Gerald Lorusso (ASG's owner) testified for ASG, and Laura Green, Ph. D., D.A.B.T., and Christine Gibbons of Engineering Technologies Group, Inc. gave expert testimony on behalf of ASG. William McDonough, the Attleboro Building Commissioner and Zoning Enforcement Officer, testified for the City of Attleboro. The Parties stipulated to seventeen statements of fact, and the Court admitted thirteen exhibits into evidence. [Note 3]

Following receipt of the trial transcripts, the Parties each filed their proposed findings of fact and rulings of law. Closing arguments were held on February 1, 2018. On July 19, 2018, the court requested supplemental post-trial briefs, which were filed on August 15, 2018.

Now, in accordance with the findings of fact and rulings of law set forth in the Decision dated October 9, 2018, it is hereby:

ORDERED, ADJUDGED and DECLARED that an asphalt plant is not a permitted use of land in the City of Attleboro's IBP District under the Ordinance in effect prior to June 4, 2015.

SO ORDERED.

FOOTNOTES

[Note 1] After this action commenced, the Attleboro Zoning Ordinance was amended to expressly prohibit asphalt plants in the IBP District. The amendment became effective upon approval of the Mayor on June 4, 2015. Plaintiff, however, continues to pursue this action on the ground that the use of the subject property is still governed by the pre-2015 Ordinance as a result of a zoning freeze ASG obtained in 2013. On February 6, 2017, this court ruled in Attleboro Sand & Gravel Corp. v. City of Attleboro, Case No. 15 MISC 000514 (JCC) that, pursuant to G.L. c. 40A, § 6, the filing of this Chapter 240, § 14A action on September 16, 2014 suspended the running of the three-year, pre- amendment zoning freeze provided that final adjudication in this case is favorable to ASG. The City's appeal of the February 2017 decision has been stayed by the Appeals Court pending the decision in this case.

[Note 2] In its Amended Complaint, ASG also sought declaratory judgments regarding the validity and applicability of two other sections of the Ordinance: § 17-3.3 (Prohibited Uses) and § 17-4.8 (Performance and Design Standards – IBP). However, the Parties stipulated prior to trial that those claims would be withdrawn so that the only question to be addressed at trial would be whether an asphalt plant was permitted by right in the IBP District under the Zoning Ordinance in effect prior to June 4, 2015.

[Note 3] Exhibit 13 was filed with permission of the court, and by agreement of the parties, on October 31, 2017, the day after trial.