TOWN OF MANCHESTER vs. MARION L. LEAHY & another.

CUTTER, J. The defendant Leahy owns 36 acres of woodland in Manchester on 5.9 acres of which he maintains and operates a saw mill. The mill is seven tenths of a mile from the nearest highway (only twelve feet wide) and at least two miles from the nearest dwellings. In December, 1955, the defendants erected a rough covered wooden bin or shack sixteen feet long, ten feet wide, and twenty feet high (apparently including its supporting posts) for the storage of wood shavings. The bin was supported at each corner by a post stuck into the ground and was raised high enough to keep the shavings dry, and to permit a vehicle to go under it to receive shavings through an opening in the floor. Prior to building the bin, "the defendants maintained a lean-to in the same small area, used for various purposes, including the storage of shavings," but then to keep the shavings dry it had been necessary to store them in a corner of the mill.

Before putting up the new bin or shack, the defendants did not seek a permit or variance under the Manchester zoning by-law adopted in 1945. The mill is a nonconforming use under this by-law, in what became a single residence district by an amendment approved by the Attorney General in January, 1955. [Note p159-1] Since the adoption of the by-law the volume of business at the mill has not increased. The

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"storage and sale of shavings is a . . . substantial part of the entire business."

The town brought this bill in equity to obtain a mandatory injunction for the removal of the new bin. [Note p160-1] The evidence (apart from the text of the town's zoning by-law as amended and photographs of the new bin) is not before us, but the trial judge found the facts stated above. He concluded that the bin or shack "is not a structure as the supporting posts . . . are merely placed in the ground to support the room above," and ordered a decree to be entered dismissing the bill. From this decree the town appeals.

The defendants contend that the new bin is merely an expendable and temporary replacement of another temporary, expendable lean-to formerly maintained on the mill premises, which has been raised on posts to make it more usable. The trial judge in effect accepted this contention.

Since the evidence is not reported, there is no adequate basis for testing the trial judge's conclusion that the new bin or shack "is not a structure," which we interpret as meaning that it does not have that solidity or permanence to bring it within the prohibition or intent of Section IV of the by-law forbidding the replacement of nonconforming buildings without a permit. We cannot say on this record that his conclusion was not justified, or that, as a matter of law, the replacement or modification of every insubstantial shed or auxiliary outbuilding, used in connection with a nonconforming use, must be regarded as action with respect to a structure subject to regulation as authorized by G. L. (Ter. Ed.) c. 40A, Section 5, inserted by St. 1954, c. 368, Section 2, and by Section IV of this by-law enacted pursuant to c. 40A and predecessor statutes.

Cases like Connors v. Burlington, 325 Mass. 494, 495-496, and Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657, 660-661, dealing (a) with the power

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of a town or its boards to control alteration and replacement of any construction on zoned land which in fact amounts to a "building or structure" or (b) with a substantial structure like that considered in Wilbur v. Newton, 302 Mass. 38, 43-44, are not applicable to facts like those in the case at bar, where the trial judge has found in effect that the bin was expendable.

Decree affirmed.