Oakham Sand & Gravel v. Town of Oakham

• Decision Date: 28 February 2002
• Docket Number: 99-P-655
• Citation: 54 Mass. App. Ct. 80
• Court: Appeals Court of Massachusetts
• Parties: OAKHAM SAND & GRAVEL CORPORATION vs. TOWN OF OAKHAM & another(FN1) (and a companion case(FN2)). Docket No.: 99-MASSACHUSETTS COURT OF APPEALS County: Suffolk

OAKHAM SAND & GRAVEL CORPORATION vs TOWN OF OAKHAM & another¹ (and a companion case²)

Docket No.: 99-P-655

MASSACHUSETTS COURT OF APPEALS

County: Suffolk

May 15, 2001.

February 28, 2002

Zoning, Nonconforming use or structure. Contempt. Practice, Civil, Contempt.

Civil action commenced in the Land Court Department on March 28, 1997.

The case was heard by Leon J. Lombardi, J., and a complaint for contempt, filed on April 14, 1999, was heard by him.

Gary S. Brackett for the plaintiff.

Barry A. Bachrach for the defendant.

Present: Jacobs, Duffly, & Cypher, JJ.

CYPHER, J.

Oakham Sand and Gravel Corporation (OS&G) appeals from (1) a judgment of the Land Court affirming a decision of the zoning board of appeals of Oakham (board) upholding the zoning enforcement officer's determination that OS&G's use of its land was in violation of the local zoning by-law, and (2) a judgment holding OS&G in contempt. We conclude that the Land Court judge correctly determined that OS&G impermissibly expanded its nonconforming use and that the judgment and order of the court was clear and unequivocal.

1. Factual background. OS&G operates a sand and gravel removal business on a parcel of land consisting of approximately 108 acres on Old Turnpike Road in Oakham (locus). Since 1961, various owners have removed sand and gravel from the locus. Prior to 1985, approximately 1,500 cubic yards of material were removed from the locus annually, on a seasonal basis. The operation during this period was primarily conducted on four acres, although six additional acres were used to a lesser degree. From 1977 through 1991, the locus was owned by a company operated by two brothers who were the company's only employees. The brothers used the locus as a sand and gravel pit until 1984, using equipment that included two six-wheel trucks, a nonmechanized screen, and a small front-end loader.

In 1989, the town amended its zoning by-law (1989 amendment) to require a special permit for removal of soil in amounts exceeding 1,500 cubic yards per year. The locus was sold in 1992, and an access road was widened and paved to accommodate vehicles as large as eighteen-wheel trucks.

OS&G acquired the locus through a subsequent sale in 1994.

In 1995 and 1996, OS&G mined and sold between 50,000 and 100,000 cubic yards of sand and gravel annually. By 1996, OS&G operated its business on a year-round basis and, as of the trial date, actively used twenty-five acres for the removal operation. OS&G used equipment that included two front-end loaders, a tracked excavator, a bulldozer, and a mechanized screening plant. In 1996, OS&G brought in a mobile office trailer to provide office space.

Since 1989, approximately twenty new homes have been built within one mile of the locus. The police department has received complaints about truck noise, mud on roadways, and the size of the trucks traveling on streets near the locus.

2. Procedural background. After OS&G had been informally and repeatedly notified that its operation was a violation of the zoning by-law, the zoning enforcement officer posted a cease and desist order on the locus in March, 1997.³ OS&G appealed the order to the board pursuant to G. L. c. 40A, §§ 8, 15. The board upheld the order.⁴ In its decision the board explained that the zoning enforcement officer's order was a "warning stating a perceived violation of a by-law by the Enforcement Officer."

OS&G brought an action in the Land Court pursuant to G. L. c. 231A and G. L. c. 240, § 14A, seeking a declaration that its current use is a protected exercise of a nonconforming use under G. L. c. 40A, § 6, not subject to the special permit requirement. OS&G also appealed under G. L. c. 40A, § 17, from the board's decision upholding the cease and desist order. The town filed a counterclaim pursuant to G. L. c. 231A, §§ 1 et seq., and G. L. c. 240, § 14A, seeking a declaration that OS&G is subject to the special permit requirement.

The Land Court judge, hearing the matter de novo, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954), conducted a two-day trial and ruled on March 8, 1999, that OS&G "cannot continue its current operations at locus without obtaining a special permit from the planning board." The decision was based on the second and third tests of Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), and Powers v. Building Inspector of Barnstable, 363 Mass. 648, 663 (1973).⁵ The judge found that the use by OS&G (1) constituted a change in the quality and character, as well as the degree, of the prior nonconforming use, given the increased area of the removal operations, and (2) that the current use is different in kind in its effect on the neighborhood. Accordingly, the judge affirmed the decision of the board and declared that OS&G is subject to the special permit requirements of the amended by-law, but that OS&G may, as matter of right, continue its sand and gravel removal operation within the ten-acre area used by the former (pre-1989) operators, provided that OS&G removes less than 1,500 cubic yards of material from the locus annually.⁶

After the Land Court issued its decision, OS&G, by its own admission, continued its sand and gravel removal operation unabated and removed in excess of 1,500 cubic yards of material from the locus without applying for a special permit from the town.⁷ In response, the town filed a complaint for civil contempt on April 14, 1999. In two orders on various motions to clarify the judgment, issued May 12, 1999, and June 21, 1999, the judge stated that his March 8, 1999, ruling compelled OS&G to cease removal operations at once since it had already removed more than 1,500 cubic yards of material during 1999. An evidentiary hearing was conducted on August 26, 1999, and a partial judgment of contempt was entered by the Land Court on September 23, 1999. On November 1, 1999, the Land Court issued a judgment of contempt that restated and incorporated the previous partial judgment of contempt and ordered OS&G to pay the town $25,590 for attorney's fees.

3. Substantial extension of nonconforming use. General Laws c. 40A, § 6 (hereinafter referred to as § 6), provides that a nonconforming use of land, if lawfully created, is exempt from subsequently enacted zoning provisions. "To preserve the protection afforded a preexisting, nonconforming use under... § 6, any subsequent use of the property must not constitute a 'change or substantial extension' of the nonconforming use." Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 40 Mass. App. Ct. 71, 74 (1996), S.C., 424 Mass. 404 (1997). Once there is a change or substantial extension to a nonconforming use, the resulting use must comply with the current zoning by-laws to avoid becoming an illegal use. Although "[t]he character of a [nonconforming] use does not change solely by reason of an increase in its volume..., or because the hours of operation have expanded..., or because improved equipment is used," Selectmen of Blackstone v. Tellestone, 4 Mass. App. Ct. 311, 315 (1976) (citations omitted), a dramatic increase in the intensity of these characteristics can rise to the level of a qualitative change or substantial extension that constitutes an impermissible alteration of the nonconforming use. Kreger v. Public Bldgs. Commr. of Newton, 353 Mass. 622, 627 (1968) (expansion of retail oil supply business from 200,000 gallons to 1.4 million gallons per month and addition of a wholesale operation constituted essential change in use).

"This court's duty is to accept the trial judge's findings of fact unless they are clearly erroneous." Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App. Ct. 450, 453 (1987). See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). A finding of fact will not be deemed clearly erroneous unless the appellate court "on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). The judge's conclusion that OS&G's current use of the locus constitutes an unlawful expansion of a nonconforming use is supported by subsidiary findings that are, in turn, supported by the evidence. Since the 1989 amendment, the volume of sand and gravel production has increased by greater than thirtyfold and there has been an attendant increase in traffic to and from the locus. Compare Kreger v. Public Bldgs. Commr. of Newton, supra at 627; Powers v. Building Inspector of Barnstable, 363 Mass. at 663.

Furthermore, OS&G increased its use of heavy equipment, more than doubled the area actively used for the sand and gravel removal operations, compare Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 676 (1968), and substantially increased the periods of operation, compare Donovan Drug Corp. v. Board of Appeals of Hingham, 336 Mass. 1, 4-5 (1957).

In light of these findings, in addition to the findings previously recited, the judge rightly concluded that OS&G had extended its nonconforming use beyond the protection of § 6. Contrast Powers v. Building Inspector of Barnstable, 363 Mass. at 658-660; Derby Ref. Co. v. Chelsea, 407 Mass. 703, 714-717 (1990).⁸

We are not persuaded by OS&G's argument that the town's enforcement officer was overreaching by issuing a cease and desist order. When there is a violation of a town's zoning by-law, issuance of a cease and desist order is an acceptable and common enforcement practice among municipal officers charged with enforcing zoning by-laws. See, e.g., Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249, 250 (1990); Burlington Sand & Gravel, Inc. v. Harvard, 31 Mass. App. Ct. 261, 262 (1991).

OS&G argues further that the decision by the board was invalid under G. L. c. 40A, § 15,⁹ since some of the board members expressed different reasons for voting as they did. A majority of the board members reached the conclusion that...