Posted by: Patricia Salkin | October 5, 2016

MA Land Court Upholds Enforcement Order Issued by the Town’s Building Inspector to Halt Towing Operation

Plaintiff 11 Gould Street, LLC initiated this action pursuant to G.L. c. 40A, § 17, to challenge the decision of the Town of Stoneham Board of Appeals to uphold a cease and desist order issued by the Town’s Building Inspector. The Building Inspector determined Plaintiff was conducting a towing operation at 11 Gould Street in Stoneham, and that the use was not permitted as-of-right in a Commercial I Zoning District, nor was it permitted under either site plan approvals or a special permit previously granted. The 1999 Site Plan Approval allowed a “one-story commercial building with mixed office use and industrial park use,” provided “no automobile repair or auto body repair of any type shall take place at the above referenced site.” The 2010 Site Plan Amendment allowed for “contractor’s storage” at the Property and that hours of “non-emergency operation” be extended from 7:00am to 5:30am Monday through Saturday. Two months after the 2010 Site Plan Amendment issued, the 2010 Special Permit was granted also allowing “contractor’s storage use,” subject to six conditions, one of which incorporated the Site Plan Approval hours of operation. It also provided: “No salvage or recycling activities are allowed.”

The Building Inspector determined that Plaintiff’s use constituted “towing,” which was not defined or mentioned in the Bylaws, and that such use fell under “automobile repair services” as defined in Bylaws Section 2.1.5 and allowed in a Commercial I zoning district pursuant to Bylaws Section, if both site plan approval and a special permit are in place. The definition of “automobile repair services” set out in Bylaws Section 2.1.5 referenced, among other uses, a public garage. Because the definition of a public garage included the “storage” of “automobiles or other motor vehicles,” the Building Inspector determined that this category applied to Plaintiff’s use of the Property. However, no special permit or site plan approval had been issued allowing such use on the Property. Since the original 1999 Site Plan Approval prohibited “automobile repair or auto body repair of any type shall take place at the Property, the Building Inspector issued the Enforcement Order.

The Plaintiff contended the current use of the Property was within the scope of the Town of Stoneham’s Zoning Bylaws, and argued that no towing took place at the Property. Plaintiff further claimed its use constituted a “vehicle transport business” as opposed to towing or automobile repair services, that there was no tow yard onsite, and that vehicles were only towed or transported to the Property in rare, emergency situations. Plaintiff did not, however, dispute that tow trucks, both standard and flatbed, drove to and from the Property at various times. Thus, a reasonable distinction could be drawn between towing uses and storage uses, such as contractor’s storage. Based on the record before the court, the court held that the Board’s determination could not be described as legally untenable, or unreasonable, whimsical, capricious or arbitrary.

11 Gould St., LLC v. Saltzman, 15 MISC 000167 KFS, 2016 WL 4732619 (Mass. Land Ct. Sept. 12, 2016)


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