Posts tagged "Plainville"

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;       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 […]


Posted by Massachusetts Legal Resources - June 7, 2013 at 7:29 am

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