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

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1022 Appeals Court PLAINVILLE ASPHALT CORP. vs. TOWN OF PLAINVILLE. No. 12‑P‑1022. Suffolk. February 28, 2013. ‑ June 6, 2013. Present: Vuono, Rubin, & Sullivan, JJ. Zoning, By‑law, Nonconforming use or structure. Municipal Corporations, By‑laws and ordinances. Civil action commenced in the Land Court Department on April 29, 2010. The case was heard by Gordon H. Piper, J., on motions for summary judgment. Brian M. Hurley for the plaintiff. Katharine I. Doyle for the defendant. 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 […]

275 Washington Street Corp. v. Hudson River International, LLC, et al. (Lawyers Weekly No. 10-071-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11217 275 WASHINGTON STREET CORP., trustee,[1] vs. HUDSON RIVER INTERNATIONAL, LLC,[2] & another.[3] Suffolk. January 7, 2013. ‑ April 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Contract, Lease of real estate, Termination, Damages, Indemnity. Landlord and Tenant, Lease as contract, Rent, Termination of lease. Real Property, Lease. Damages, Breach of contract. Indemnity. Guaranty. Civil action commenced in the Superior Court Department on May 29, 2008. The case was heard by Charles T. Spurlock, J., on motions for summary judgment, and entry of final judgment was ordered by Carol S. Ball, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David G. Hanrahan (John G. Hofmann with him) for the plaintiff. Bruce E. Falby (Matthew Iverson with him) for the defendants. Adam N. Lewis & Neil R. Janulewicz, Jr., for Arts & Business Council of Greater Boston, Inc., amicus curiae, submitted a brief. Lawrence P. Heffernan, John T. Ronayne, Danielle Andrews Long, & Kendra L. Berardi, for Real Estate Bar Association for Massachusetts & another, amici curiae, submitted a brief. GANTS, J. The primary questions on appeal are threefold. First, after a breach of a commercial lease by the tenant and termination of the lease by the landlord, does an indemnification clause in the lease, in the absence of specific language so providing, allow the landlord to recover before the end of the lease term the present value of lost future rent once the landlord relets the property to another tenant for the duration of the lease? Second, in the absence of a clause in the lease specifically so providing, does our common law allow a landlord to recover contract damages for the present value of lost future rent after the termination of the lease? Third, does the liability of the guarantor here exceed the liability of the tenant? We answer, “No,” to each question. We hold that a landlord cannot recover for posttermination damages under an indemnification clause in a lease until the end of the period specified in the lease, when the amount of indemnification is certain, unless the indemnification clause specifically provides that damages may be recovered earlier. We also hold that a landlord has no common-law […]