Plainville Asphalt Corp. v. Town of Plainville (Lawyers Weekly No. 11-072-13)

SULLIVAN, J.  This appeal calls upon us to decide the reach of a town bylaw amendment that expanded the reasons for discontinuation of nonconforming uses, and the relationship between that bylaw and the first and third paragraphs of G. L. c. 40A, § 6.  Plainville Asphalt Corp. (Plainville Asphalt) brought an action pursuant to G. L. c. 240, § 14A, seeking a determination whether the use of its property as a bituminous concrete operation was permitted.  It now appeals from the allowance of a motion for summary judgment in favor of the town of Plainville (town), in which a judge of the Land Court held that the plaintiff’s business was engaged in a nonconforming use and had lost its “grandfather” protection through nonuse.  We affirm.

Background.  The essential facts are undisputed.  As early as 1965, Plainville Asphalt’s predecessor manufactured bituminous concrete at the Plainville site.  At that time, the town’s zoning bylaws allowed bituminous concrete facilities provided that the effects of this commercial use did not exceed certain dust, odor, and noise limitations outside the site.  In 1967, the town amended the bylaw’s “use regulation” table (§ 2.8) to provide that certain uses were “excluded or prohibited use[s] in all districts in the town.”  Specifically, § 2.8 was amended to provide that “Cement, Concrete and Bituminous Product Manufacture and Similar Operations Causing Dust, Noise and Odor” are “excluded or prohibited use[s].“  However, under § 3.1.1 of the bylaw then in effect, the existing use was “grandfathered” as a nonconforming use, subject to loss only by abandonment.  In 1983, however, the bylaws were amended to provide that nonconforming uses were extinguished if a use was either abandoned or “cease[d] to be a nonconforming use.”

In 2002, Plainville Asphalt sold certain assets and liabilities and agreed to noncompete provisions in the terms of sale.  It is undisputed that Plainville Asphalt did not produce bituminous concrete from its Plainville location from January 1, 2003, through at least 2009.

Discussion.  On appeal, “[w]e review the decision to grant summary judgment de novo.”  Miller v. Cotter, 448 Mass. 671, 676 (2007).  We look to the summary judgment record to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.”  Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).  See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1401 (2002).

1.  Nonconforming use.  Plainville Asphalt contends that the manufacture of bituminous concrete product is not a use prohibited by the zoning bylaws, but remains a use as of right.  This construction of the bylaw is achieved by reading § 2.8 in tandem with § 3.4, which generally prohibits certain types and volumes of noise, dust, or odors that have an impact beyond the site of otherwise permitted commercial operations.  Thus, Plainville Asphalt argues, the 1967 amendment was intended to prohibit only those uses specified in § 2.8 that fail to meet the standards set out in § 3.4; that is, the enumeration of “Cement, Concrete and Bituminous Product Manufacture” among the uses listed as prohibited or excluded in § 2.8 was meant not by way of exclusion, but clarification of the types of uses to which § 3.4 applied.  The Land Court judge disagreed with this construction of § 2.8, concluding that all cement, bituminous, and concrete operations, without exception or limitation, became nonconforming uses under § 2.8 and were prohibited by the 1967 amendment.

When interpreting bylaws, we resort to familiar rules of statutory construction.  See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012).  We first look to the language of the bylaw and, where that language is plain and unambiguous, we enforce the bylaw according to its plain wording.  See ibid.  Section 2.8 is the more specific provision that lists nonconforming uses, whereas § 3.4 is a more general section that imposes conditions or limitations on otherwise permitted uses that result in certain offsite impacts.  The more specific statute or bylaw controls over the more general.  See Grady v. Commissioner of Correction, ante 126, 131-132 (2013).  We thus start with § 2.8 to determine the extent of its prohibition on manufacture of bituminous concrete.

Plainville Asphalt’s interpretation of § 2.8 applies the phrase “Causing Dust, Noise and Odor” not just to “Similar Operations,” but to “Cement, Concrete and Bituminous Product Manufacture” as well.  The judge, however, applied the rule of the last antecedent, which holds that “qualifying phrases are to be applied to the words or phrase immediately preceding and are not to be construed as extending to others more remote.”  Russell v. Boston Wyman, Inc., 410 Mass. 1005, 1006 (1991), quoting from United States v. Ven-Fuel, Inc., 758 F.2d 741, 751 (1st Cir. 1985).  We agree with the Land Court judge’s application of the rule.  The phrase “Causing Dust, Noise and Odor” applies only to “Similar Operations” in § 2.8.  It does not apply to “Cement, Concrete and Bituminous Product Manufacture” generally.  The prohibition under § 2.8 is thus unambiguous and renders the bituminous operation here nonconforming.

Nonetheless, the rule of the last antecedent, while grammatically correct, does not apply if there “is something in the subject matter, dominant purpose, or language of the statute that requires a different interpretation.”  Mauri v. Zoning Bd. of Appeals of Newton, ante 336, 342 (2013), quoting from Herrick v. Essex Regional Retirement Bd., 77 Mass. App. Ct. 645, 650 (2010).  We see nothing in the purpose or language of the bylaw, however, that suggests a different interpretation.

The town’s legislative body is presumed to be aware of existing bylaws when it amends or enacts a new one.  Cf. Weber v. Coast to Coast Med., Inc., ante 478, 482-483 (2013).  As a reviewing court, we are guided by the corollary principle that statutes or bylaws dealing with the same subject should be interpreted harmoniously to effectuate a consistent body of law.  See Grady, supra.  Plainville Asphalt asserts that a construction of the bylaw that renders its bituminous operation nonconforming fails to give a fair and complete reading of the bylaws as a whole, because it fails to take into consideration the intent of § 3.4 to limit the over-all generation of dust, odor, and noise.  As the Land Court judge aptly pointed out, however, the proposed reading of § 3.4 would make the addition of “Cement, Concrete and Bituminous Product Manufacture” to § 2.8 under the 1967 bylaw amendment superfluous.  The provisions of § 3.4 banning excessive dust, noise, and odor applied to bituminous concrete operations before 1967.  The plain meaning of § 2.8, therefore, is that bituminous concrete production became a prohibited use as of 1967, no matter whether it creates “dust, noise and odor” or not.  See generally Rockwood v. Snow Inn Corp., 409 Mass. 361, 364 (1991) (construction which would render the words of a statute “meaningless surplusage” rejected).  Even if the words of the bylaw were ambiguous (which they are not), the same rules of statutory construction would militate in favor of resolving those ambiguities in such a way as to give meaning to all the words and phrases of the bylaw.  Cf. Libertarian Assn. of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 550 (2012) (interpreting an ambiguous statute in a manner consistent with the statutory scheme as a whole).

Grandfathering of prior nonconforming use.  As noted above, in 1965, when Plainville Asphalt’s predecessor began operating at the site, § 3.1.1 of the town’s bylaw provided that preexisting nonconforming uses were protected from zoning changes, except in cases of abandonment for one year.  In 1983, the town amended § 3.1.1 to provide that preexisting nonconforming uses were protected from zoning changes, except in cases of abandonment or where “the use of a premises or the use of a structure ceases to be continued in nonconforming use” for one year.

Plainville Asphalt contends that the “grandfathering” of prior nonconforming use pursuant to G. L. c. 40A, § 6, first par., is governed not by the 1983 amendment to the bylaw permitting loss by nonuse, but by the bylaw in existence at the time the use began in 1965 or when it became nonconforming in 1967.  Thus, Plainville Asphalt maintains that the use of the property for bituminous operations was an “as of right” use continuously since 1965, subject to forfeiture only by abandonment, not nonuse.

This constitutes a strained and incorrect reading of the statute, which must be construed as a whole.  See Libertarian Assn. of Mass., 462 Mass. at 551.  Protection of nonconforming uses is governed by the first paragraph of G. L. c. 40A, § 6, which provides that “a zoning ordinance or by-law shall not apply to . . . uses lawfully in existence . . . , but shall apply to any change or substantial extension of such use . . . .“  This paragraph protects a permitted nonconforming use from certain bylaw changes in effect at the time the use is ongoing, but permits the loss of that protection if the use changes or is extended.  We need not decide whether the 1983 amendment’s addition of nonuse to the reasons for loss of protection as a nonconforming use constitutes the type of change or subsequent extension contemplated by the first paragraph, because the General Court has granted cities and towns the clear authority to regulate nonconforming uses in G. L. c. 40A, § 6, third par.  This paragraph explicitly permits municipalities to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more” by means of “[a] zoning ordinance or by-law.“  The plain meaning of “the actual words chosen by the Legislature,” Tyler v. Michaels Stores, Inc., 464 Mass. 492, 495 (2013), is that § 6, third par., permits extinguishment by nonuse of uses (and structures) which otherwise would enjoy grandfathering protection under the first paragraph.  Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664, 667 (1987).

Relying on the Supreme Judicial Court’s opinion in Rourke v. Rothman, 448 Mass. 190 (2007), Plainville Asphalt suggests that § 6, as a whole, “provides protection . . . from changes to grandfathering provisions” in local bylaws.  Rourke, however, was decided under § 6, fourth par., applicable to residential lots, see Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 18-19, not the third paragraph, which applies to structures and uses.  G. L. c. 40A, § 6, fourth par., contains provisions exempting certain residential lots from enumerated zoning restrictions provided that, among other things, they “conformed to then existing requirements.”  Rourke interpreted the relationship between the phrase “then existing requirements” in the fourth paragraph and the “grandfather clauses” in local ordinances, and held that the phrase “then existing requirements” in the fourth paragraph encompassed the “grandfather” provisions of the town bylaws regulating nonconforming residential lots.  See Rourke, supra at 197-198.  This interpretation of the fourth paragraph was consistent with the underlying legislative policy expressed in the first sentence of that paragraph, “the manifest purpose of which is to preserve the buildable status of certain [residential] nonconforming lots in perpetuity.”  Id. at 197.  See Adamowicz v. Ipswich, 395 Mass. 757, 763 (1985), quoting from Sturges v. Chilmark, 380 Mass. 246, 261 (1980) (“Section 6 is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes . . . .”); Chamseddine v. Zoning Bd. of Appeals of Taunton, 70 Mass. App. Ct. 305, 308 (2007) (§ 6, fourth par., is inapplicable to commercial uses).  We view Rourke, which interpreted the meaning of the language of limitation in § 6, fourth par., to be confined to that context.

By contrast, the nonconformity at issue here is a use, protected under § 6, first par., and subject to forfeiture under the third paragraph by reason of nonuse.  Because § 6, third par., gives cities and towns the explicit authority to regulate nonconforming uses and structures which are unused (for the nonconforming purpose) for two years or more, the plain language of the statute, as well as the legislative policy underlying it, compels the conclusion that the 1983 bylaw amendment applies here.  Plainville Asphalt’s use of the premises became nonconforming through nonuse, and no longer enjoys the protection of either G. L. c. 40A, § 6, or the Plainville zoning bylaw.

Judgment affirmed.

Full-text Opinions