MISC 16-000657

March 18, 2020

Plymouth, ss.




By Decision and Judgment dated June 1, 2007, this court (Long, J.) found and ruled that a long-existing concrete batching plant in Lakeville, currently owned by defendant RediMix Companies Inc. but then by M S & G Lakeville Corp., [Note 1] was a prior-protected non-conforming use and could continue to operate on the land circled on Ex. 1 to the Decision and Judgment ("the plant parcel"). I also ruled that a parcel adjoining the plant parcel (the so-called "Frates" parcel), which the plant owners had acquired in 2003, did not benefit from similar protections. M S & G Lakeville Corp, d/b/a Morse Sand & Gravel v. Town of Lakeville, et al., 15 LCR 259 (Mass. Land Ct., 2007). [Note 2] No appeal was taken, and the Decision and Judgment are thus final.

Plaintiff Paul McGillis, an abutter to an abutter of the plant who claims he has been affected by its noise since 2002, was an active member of the group that opposed the plant in that prior lawsuit, circulating petitions and organizing meetings. He closely monitored the progress of the trial and testified as a witness, but never sought to intervene as a party, even to appeal its judgment after that judgment was entered. [Note 3]

Instead, starting in 2013 (five years after the judgment), Mr. McGillis began making a series of complaints to the Lakeville Building Commissioner in which he claimed that the plant was operating beyond its permitted scope. These included:

* His April 22, 2013 complaint (demanding, among other things, that the plant be torn down). That complaint was denied, with the building commissioner specifically finding that no violations existed. Mr. McGillis did not appeal that denial.

* His August 12, 2013 complaint on similar grounds, which was also denied. Again, Mr. McGillis did not appeal.

* His August 5, 2015 complaint that cars driven by plant employees had begun parking on adjacent land owned by AA Will, and that concrete trucks had "washed out" there. This resulted in a cease and desist order regarding those activities which Redimix immediately honored by taking measures to prevent them. No such violations have occurred since.

* His August 2015 complaint that "concrete blocks" were being stored on the AA Will property. This complaint was denied, with the Building Commissioner ruling that the blocks were simply a barrier between the properties and not a "commercial operation" of the plant. Again, Mr. McGillis did not appeal.

* His September 2, 2015 complaint that the plant was operating outside of its allowed boundaries. This too was denied, with the building commissioner specifically finding that "the area in question is not in violation." Again, Mr. McGillis did not appeal.

* His May 10, 2016 complaint about "jackhammering" at the plant to remove dried-out concrete from the concrete trucks. This resulted in a cease and desist order regarding those activities which Redimix immediately honored by taking measures to prevent them. No such violations have occurred since.

At issue now is Mr. McGillis' June 14, 2016 complaint to the building commissioner in which he once again alleged that the plant was operating outside its permitted scope. Specifically, he alleged that (1) the plant was storing material on the Frates parcel, and (2) access to the plant was over the so-called "Lang" parcel, which he contended was not protected by the court's 2007 Judgment because the plant owners had not formally acquired it until 1960, shortly after zoning took effect (1959). [Note 4]

The building commissioner conducted "a thorough review of the file for this property," the court's 2007 Decision and Judgment, and the information Mr. McGillis provided, and found that "the area in question is not in violation." This was not surprising. (1) RediMix had blocked-off the Frates parcel so that it could not be used. (2) The so-called "Lang parcel" -- the area between the plant and Fern Avenue -- was the only way the plant had ever had access to a road, and had been used by the plant for such access since the plant first began operating in 1955/1956) (pre-zoning). [Note 5] And (3) the court's 2007 Decision and Judgment clearly showed the "Lang parcel" area as included within the grandfathered "plant parcel" as the court defined it.

Mr. McGillis appealed the commissioner's ruling to the zoning board of appeals. After hearing Mr. McGillis' arguments, the board came to the same conclusion as the commissioner and dismissed Mr. McGillis' appeal. This case is Mr. McGillis' G.L. c.40A, §17 appeal from the board's decision.

Mr. McGillis' ground for that appeal (Count I of his First Amended Complaint) is more fully explained in his "fraud on the court" claims (Counts II and IV). All three counts are rooted in a single theory -- that (1) "grandfathering" required all parts of the parcel be owned by the plant operator prior to the adoption of the zoning that made the parcel non-conforming, and (2) because the land swap that put formal ownership of the Lang parcel into the plant parcel came after zoning, and because there were other minor land swaps over time, the grandfathering of the plant was either "abandoned" or never extended to the Lang parcel area. The "fraud," he says, was M S & G's failure to bring these land swaps fully to the court's attention in the earlier case, thus voiding that Judgment. Mr. McGillis' remaining claim (Count III) is his request that the Lakeville Board of Selectmen be ordered, by writ of mandamus, to bring an action against the zoning board to force the zoning board "properly" to enforce the zoning bylaw, i.e. in the manner Mr. McGillis advocates.

The case was tried before me, jury-waived. Mr. McGillis withdrew his claim seeking to prevent the Frates parcel from being used for commercial purposes when RediMix stipulated that it would continue to maintain concrete block barriers along the border of that parcel, preventing such use. [Note 6] The mandamus claim against the Selectmen has no merit as a matter of law. As more fully discussed below, even if the Selectmen wanted to take such an action, they lack standing to do so. And there is no merit to Mr. McGillis' challenge to the grandfathering of the plant parcel as defined and declared in the court's 2007 Decision and Judgment. First, the failure to make such arguments in the prior proceeding bars them now. Mr. McGillis is bound by that prior judgment. Second, grandfathering turns on use, and the 2007 Decision and Judgment found that the entirety of the plant parcel as defined by the court -- a defined area that included the "Lang parcel" -- had been used by the plant from the very beginning of its operations, pre-existing zoning, and RediMix (like M S & G before it) is the successor-in-title to all the areas of that use. As Mr. McGillis himself admitted at trial, whatever ownership reconfigurations may have happened over time, the actual location of the plant and its access route from Fern Road have always been the same. This was fully corroborated by the evidence in the prior trial as well as the evidence in this one, and I so find.

Facts and Analysis

In a G.L. c.40A, §17 appeal, the court makes its own de novo findings of fact based on the evidence presented at trial and gives no weight to those the municipal board has found. See Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012). Similarly, this court makes its own findings of fact on Mr. McGillis' other claims. I have done so, with my findings set forth below. Mr. McGillis' objections to the process by which the Lakeville building commissioner and zoning board made their factual findings are thus irrelevant.

The facts material to the resolution of Mr. McGillis' contentions are simple and straightforward. I find them, after trial, as follows.

Mr. McGillis is an automobile mechanic by training and experience, and owns and operates an automobile repair business. He is not a surveyor, has neither the training nor professional competence to determine the location of boundary lines, and I thus give no credence to his opinions on where the various parcel boundary lines are located, particularly since he offered no testimony from an actual surveyor for corroboration.

Mr. McGillis lives with his family in a house near the RediMix concrete batching plant site. [Note 7] The plant was in full operation when he bought that house in 1995, and had been so for many decades. As found in the earlier case, those plant operations began in 1955/1956, at least three years before the zoning was first adopted in Lakeville (1959) that put the area in a residential district. See M S & G Lakeville Corp, 15 LCR at 261. Access to the plant came exclusively from Fern Avenue at that time, and that has been its sole access continuously through today. That access crosses the so-called "Lang" parcel, which lies between the plant buildings and Fern Avenue. There is no other way to or from the plant. Both the plant and its access route across the Lang parcel were thus "lawful" when they began, and are "grandfathered" by G.L. c.40A, §6 ("a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun . . . before the first publication of notice of the public hearing on such ordinance or by-law").

Ready-mix concrete is a composition of sand, gravel, cement powder (a mixture of gypsum and other materials), water, and various chemical additives. These ingredients are transported to batching plants like this one, where they are stored on site until needed. Production does not begin until a concrete mixer truck arrives at the plant to take delivery. The sand, stone, and cement are then sequentially taken from storage and individually measured in a "weigh box." After measurement, they are dropped on a conveyor and taken to a loading boot (a type of funnel), which guides them into the cylinder of the waiting truck where the water and chemicals are metered and added. The concrete is then mixed in the truck and transported to the construction site. Today, at this plant, most of this activity takes place within containment structures outfitted with sound abatement devices. See M S & G Lakeville Corp, 15 LCR at 260-262.

Mr. McGillis admits that the plant buildings have not moved since he first came to the area in 1995. In my 2007 Decision, from which no appeal was taken, I found that the plant had been in that location since 1955/56, [Note 8] and thus was a protected prior non-conforming use. [Note 9] The evidence showed, and I so find, that the entirety of the plant is within the area I found "protected." That area includes the Lang parcel and the access over it to Fern Avenue, which I included within my definition of "the plant parcel" (see 15 LCR at 259, n.2 and the circled area labelled "plant parcel" on Ex. 1 to the June 1, 2007 Decision and Judgment). That the Lang parcel has always and continuously been used for ingress and egress to and from the plant is obvious: it is the plant's only connection to Fern Avenue, which is the only roadway into or out of the plant. The fact that it was acquired in a formal land swap in 1960 reflects that connected use.

As previously noted, Mr. McGillis actively participated in the M S & G proceedings, including testifying as a witness. His interests were more than adequately represented by town counsel and the neighbor-litigants who were parties - neighbors, moreover, whom he himself organized and assisted. [Note 10] He had the opportunity to seek to become a formal party, even (as an intervenor) as late as post-judgment to seek that status for purposes of appeal, but chose not to do so. He is thus bound by its Judgment. See Heacock v. Heacock, 402 Mass. 21 , 23 (1988) ("The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action. This is so even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies."); DeGiaccomo v. Quincy, 476 Mass. 38 , 43-44 (2016) (litigant is in privity with party in earlier case, and thus bound by its judgment, when his interest was adequately represented by that party); Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 (1st Cir. 1994) (litigant deemed to be in privity with party in earlier case when he permitted that party to function as his de facto representative); Boyd v. Jamaica Plain Co-Operative Bank, 7 Mass. App. Ct. 153 , 158-159 (1979) (same). That Judgment included the Lang parcel within the protected "grandfathered" area, and the building commissioner and zoning board quite properly recognized this in their rulings in this case.

Mr. McGillis contends that this aspect of the Judgment is invalid because the plant operators did not own the Lang parcel at the time zoning was first adopted, making its use for commercial purposes non-compliant. This is wrong, for two reasons. First, "correct" or not, the Judgment is the Judgment, now final and binding. No appeal was taken and, as discussed above, it is res judicata on Mr. McGillis. Second, the Judgment is correct. It is use that governs grandfathering, not the ownership of the land at that time, and the Lang parcel has been used in connection with the plant's operations since the plant first began operating in 1955/1956, well before zoning was adopted. RediMix, like M S & G before it, now owns the Lang parcel and can thus, as successor in title, assert its grandfathered rights.

Mr. McGillis claims that this aspect of the Judgment is nonetheless invalid for a second reason: that M S & G committed a "fraud on the court" by not drawing sufficient attention to the reconfiguration of parcel ownership over the course of the plant's operations. [Note 11] I find this argument unpersuasive, for three reasons.

First, these arguments were never made at the M S & G trial by those aligned with Mr. McGillis, either the Town or the neighbors who did become parties, even though all of the deeds relating to the property were a matter of public record at the Registry. Had he, or they, thought the arguments had merit, they could have raised them at that time, either at trial, post-trial, or in a post-judgment motion. They (and he) did not, and it is long-since past the time to have done so. See Mass. R. Civ. P. 60(b)(3) ("fraud"- based motions seeking relief from judgment required to be brought "within a reasonable time ... not more than one year after the judgment"); Sahin v. Sahin, 435 Mass. 396 , 401-402 (2001) (discussing independent actions to obtain relief from judgment after expiration of that year; limiting such actions to situations where enforcement of judgment would be "manifestly unconscionable" or "a grave miscarriage of justice;" and noting that "new" evidence does not meet test when it was either known at time of original hearing or was then readily ascertainable); Rockdale Mgmt. Co. v. Shawmut Bank N.A., 418 Mass. 596 , 599-600 (1994) (identifying situations, such as forged documents, where judgment appropriately vacated).

Second, as discussed above, my prior judgment identifying the area I found "grandfathered" was based on use, not ownership (because "use" controls, I could not have based it on anything else), and the area circled in the Exhibit attached to the Decision and Judgment is the area I found protected. That Judgment remains. Put simply, the Judgment reflects the result the law required once the use-related facts were found, and I was not mislead when I so ruled.

Because these grounds suffice to reject Mr. McGillis' arguments, I need not and do not reach RediMix's contention that Mr. McGillis lacks standing to bring them because his alleged injuries, all noise-related, are not special and different to him. I note, however, that they are not different from the injuries alleged by the Blakes in the prior trial.

I dismiss Mr. McGillis' mandamus claim against the Board of Selectmen. I have found no law, and none has been brought to my attention, that requires a Board of Selectmen to take the town's zoning board to court to seek a different outcome than the zoning board has reached. Indeed, it would have no standing to do so even if it wanted to bring such an action because it has no role in zoning enforcement. See Dello Russo, et al., as members of the Medford City Council v. Arena, et al., as members of the Medford Zoning Bd. of Appeals, 26 LCR 12 ,13 (Mass. Land Ct. 2018) and cases cited therein (G.L. c.40A, §17 category of "municipal officers and boards" with standing to appeal zoning or planning board decisions is limited to those with duties regarding the particular zoning matters directly at issue in the case; having only general duties in relation to zoning insufficient).

Finally, in accordance with the parties' stipulation, I also dismiss Mr. McGillis' Frates-parcel related claims. The judgment in the prior case has already declared that the Frates parcel cannot be used in connection with the operations of the concrete batching plant, so no additional declaration is needed. The stipulation simply addresses the parties' agreed enforcement mechanism, which they can implement when necessary in appropriate proceedings separate from this one. Because the stipulation will not be incorporated into the judgment in this case, those remedies will not include contempt.


For the foregoing reasons, Mr. McGillis' claims are DISMISSED in their entirety,


Judgment shall enter accordingly.



[Note 1] RediMix purchased the plant from M S & G subsequent to the Decision and Judgment, and currently operates it on a part-time basis.

[Note 2] See 15 LCR at 259, n. 2 (defining the "plant parcel" as the area circled on Ex. 1, and showing the Frates parcel separately). See also 15 LCR 261 , n. 16 (finding that concrete had been produced on the plant parcel as defined, continuously and without interruption, from 1955 or 1956 (pre-zoning) to the date of the Decision and Judgment).

[Note 3] The formal parties in that action were M S & G (appealing an adverse decision by the Lakeville Zoning Board of Appeals), the Town of Lakeville, the Lakeville Zoning Board of Appeals, Mr. McGillis' next door neighbors Christopher and Kelly Blake, and two other sets of nearby homeowners, William and Johanna Kelley and Michael and Barbara Colbert. Mr. McGillis' explanation of why he did not join as a formal party to that action is unconvincing and, because he is now bound by its judgment (see discussion below), immaterial.

[Note 4] As explained more fully below, the "Lang parcel" is the area of land between the plant buildings and Fern Avenue over which the plant's access road runs. It is the only road access that has ever existed to and from the plant, and has been used since the plant began operations in 1955/1956.

[Note 5] The parcel owners deeded it to the plant owners in a 1960 land swap, reflecting and confirming its long use by the plant.

[Note 6] See Stipulation (Sept. 27, 2018). This court's 2007 Decision and Judgment had already declared that the Frates parcel could not be used by the plant; this was simply a stipulated enforcement mechanism.

[Note 7] He is an abutter to an abutter.

[Note 8] It was renovated into a more modern facility in 1960, but remained in that location.

[Note 9] Zoning was first adopted in 1959, making this district residential. Because the plant pre-dated zoning, it is a pre-existing, protected non-conforming use. See G.L. c. 40A, §6.

[Note 10] The Blakes were his next door neighbors, and both the Kelleys and the Colberts lived nearby. The complaints they made about the plant are exactly the same as Mr. McGillis made in this lawsuit.

[Note 11] "A 'fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense. The doctrine is limited to that special species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner. Courts have found fraud upon the court only where there has been the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to 'influence' the jury, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud." Wojcicki v Caragher, 447 Mass. 200 , 209-210 (2006) (internal citations and quotations omitted).