Plaintiff M.R. Pollock & Sons, Inc. (hereinafter Plaintiff) appeals a decision in favor of the Town of Middleton (hereinafter Middleton) Zoning Board of Appeals (hereinafter ZBA) declining to overturn a cease and desist order requiring Plaintiff to stop certain uses on his land. Plaintiff argues that they are allowed to carry on these activities because they are protected as pre-existing non-conforming uses pursuant to Middleton zoning laws (G.L. c. 40A, §6). Defendant argues that Plaintiff’s activities were never legal on the property and thus do not receive pre-existing non-conforming use protection. The Massachusetts Land Court upheld the decision of the ZBA, finding that the activities in question do not constitute pre-existing non-conforming uses on the property.
The property in question is located such that it falls into two separate zoning districts, a business district and a residential district. In this type of situation the zoning laws allowed for, when a district boundary line divides any lot laid out before such boundary line existed, regulations applying to the less restrictive portion may extend thirty (30) feet into the more restrictive portion, if the more restrictive portion has frontage on the less restrictive portion. Here, the law effectively extends the portion in the business district thirty feet into the residential district. When the law was enacted the owners at the time had been using a portion of the property as a sawmill and a portion of the property as a residence. The Plaintiffs began using the property in 1963 and became owners of the property in 1965, and from 1965 until the present dispute have used the property for various commercial activities including storage and sales of used farm equipment and plumbing supplies, as well as storage of school buses and roll-off containers. Stone crushing, construction, and trailerleasing companies also occupied the property at certain times. In August 1999, the ZBA sent a request for enforcement to the building inspector, claiming that certain activities including the storage of tractor trailers, dumpsters, roll-off containers and an office trailer violated Middleton zoning laws. The building inspector found the activities were protected by pre-existing non-conforming use laws (specifically G.L. c. 40A) and the remaining allegations were unfounded. In June 2002, a different building inspector issued a cease and desist order notifying Plaintiff that the storage of school buses, leased trailers and roll off containers violated zoning laws and needed to be removed from the property within thirty days. Plaintiffs appealed this decision and the ZBA upheld the building inspector’s determination.
The court, in reviewing the ZBA’s decision, looked at the present statute (G.L. c. 40A §6) and the zoning by-law in effect when the Plaintiffs purchased the property. The zoning by-law in effect at the time of the purchase is very similar to G.L. c. 40A and provided that a property use in existence at the time the by-laws took effect may continue even though it may not conform to the by-laws. G.L. c. 40A requires special authorization to change or substantially extend a nonconforming use; without authorization, the modification of such use may not be permitted. The 1955 zoning ordinance permitted various activities in the business districts including operations such as restaurants, salesrooms without repair services, shops for occupations such as electricians and painters, professional offices, hotels, and similar such businesses. The court noted that the permissible operations clearly did not include storage of school buses, leased trailers or roll-off containers.
As a result of this determination, the court held that the Plaintiff’s operations violated current zoning laws and were not protected by pre-existing non-conforming use laws. The court stated that the uses carried out by the Plaintiffs were not protected uses because they were not being carried on when the by-law was adopted, nor when the Plaintiffs came to the property in 1963. The original owners’ use of the land as a saw mill would not justify Plaintiff’s uses of the property, specifically for storage of school buses, trailers, etc. Furthermore, the area was re-zoned in the 1980s such that the entire property was zoned into the business district, but none of the Plaintiff’s uses were lawful in the business district, so they would need a special permit to carry on their activities.
The court looked at three standards for determining whether a use of property is permissible as a non-conforming use: (1) whether the present use reflects the nature and use prevailing when the zoning by-law took effect, (2) whether the present use differs in quality, character, or degree, and (3) whether the current use effects the neighborhood differently. The court determined that the Plaintiff’s use was not a protected non-conforming use because the operation of a saw-mill is not of the same nature as storage of school buses, trailers, etc., a saw-mill differs greatly in character, quality and degree from Plaintiff’s uses, and Plaintiff’s uses affected the neighborhood differently than the use of the property as a saw-mill. Therefore, the decision of the ZBA not to overturn the cease and desist order was upheld.
M.R. Pollock & Sons, Inc. v. Murphy, 2011 WL 1837593 (Mass.Land Ct.5/9/2011)
