Oakham Sand & Gravel Corp. v. Town of Oakham
Oakham Sand & Gravel Corp. v. Town of Oakham
Opinion of the Court
Oakham Sand and Gravel Corporation (OS&G) appeals from (1) a judgment of the Land Court affirming fa decision of the zoning board of appeals of Oakham (board) uphold
1. Factual background. OS&G operates a sand and gravel removal business on a parcel of land consisting of approximately 108 acres on Old Turnpike Road in Oakham (locus). Since 1961, various owners have removed sand and gravel from the locus. Prior to 1985, approximately 1,500 cubic yards of material were removed from the locus annually, on a seasonal basis. The operation during this period was primarily conducted on four acres, although six additional acres were used to a lesser degree. From 1977 through 1991, the locus was owned by a company operated by two brothers who were the company’s only employees. The brothers used the locus as a sand and gravel pit until 1984, using equipment that included two six-wheel trucks, a nonmechanized screen, and a small front-end loader.
In 1989, the town amended its zoning by-law (1989 amendment) to require a special permit for removal of soil in amounts exceeding 1,500 cubic yards per year. The locus was sold in 1992, and an access road was widened and paved to accommodate vehicles as large as eighteen-wheel trucks.
OS&G acquired the locus through a subsequent sale in 1994. In 1995 and 1996, OS&G mined and sold between 50,000 and 100,000 cubic yards of sand and gravel annually. By 1996, OS&G operated its business on a year-round basis and, as of the trial date, actively used twenty-five acres for the removal operation. OS&G used equipment that included two front-end loaders, a tracked excavator, a bulldozer, and a mechanized screening plant. In 1996, OS&G brought in a mobile office trailer to provide office space.
Since 1989, approximately twenty new homes have been built within one mile of the locus. The police department has received complaints about truck noise, mud on roadways, and the size of the trucks traveling on streets near the locus.
2. Procedural background. After OS&G had been informally
OS&G brought an action in the Land Court pursuant to G. L. c. 231A and G. L. c. 240, § 14A, seeking a declaration that its current use was a protected exercise of a nonconforming use under G. L. c: 40A, §■ 6, not subject to the special permit requirement. OS&G also appealed under G. L. c. 40A, § 17, from the board’s decision upholding the cease and desist order. The town filed a counterclaim pursuant to G. L. c. 231 A, §§ 1 et seq., and G. L. c. 240, § 14A, seeking a declaration that OS&G was subject to the special permit requirement.
The Land Court judge, hearing the matter de nova, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954), conducted a two-day'trial and ruled on March 8, 1999, that OS&G “cannot continue its current operations at locus without obtaining a special permit from the planning board.” The decision was based on the second and third tests of Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), and Powers v. Building Inspector of Barnstable, 363 Mass. 648, 663 (1973).
After the Land Court issued its decision, OS&G, by its own admission, continued its sand and gravel removal operation unabated and removed in excess of 1,500 cubic yards of material from the locus without applying for a special permit from the town.
“This court’s duty is to accept the trial judge’s findings of fact unless they are clearly erroneous.” Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App. Ct. 450, 453 (1987). See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). A finding of fact will not be deemed clearly erroneous unless the appellate court “on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). The judge’s conclusion that OS&G’s current use of the locus constitutes an unlawful expansion of a nonconforming use is supported by subsidiary findings that are, in turn, supported by the evidence. Since the 1989 amendment, the volume of sand and gravel production has increased by greater than thirtyfold and there has been an attendant increase in traffic to and from the locus. Compare Kreger
Furthermore, OS&G increased its use of heavy equipment, more than doubled the area actively used for the sand and gravel removal operations, compare Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 676 (1968), and substantially increased the periods of operation, compare Donovan Drug Corp. v. Board of Appeals of Hingham, 336 Mass. 1, 4-5 (1957).
In light of these findings, in addition to the findings previously recited, the judge rightly concluded that OS&G had extended its nonconforming use beyond the protection of § 6. Contrast Powers v. Building Inspector of Barnstable, 363 Mass. at 658-660; Derby Ref. Co. v. Chelsea, 407 Mass. 703, 714-717 (1990).
We are not persuaded by OS&G’s argument that the town’s enforcement officer was overreaching by issuing a cease and desist order. When there is a violation of a town’s zoning bylaw, issuance of a cease and desist order is an acceptable and common enforcement practice among municipal officers charged with enforcing zoning by-laws. See, e.g., Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249, 250 (1990); Burlington Sand & Gravel, Inc. v. Harvard, 31 Mass. App. Ct. 261, 262 (1991).
OS&G argues further that the decision by the board was invalid under G. L. c. 40A, § 15,
OS&G’s remaining arguments are unsupported by any relevant authority or reasoned argument and we do not consider them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Any alleged procedural irregularities at the administrative level were cured by the Land Court judge’s de nova review of OS&G’s claims. Compare Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167, 174-175 (1990).
4. Judgment of contempt. OS&G claims that the judgment of contempt was invalid because the Land Court’s March, 1999, judgment allegedly contained no “clear and unequivocal command,” see Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565 (1997), and because OS&G should be permitted some expansion of its nonconforming use. Regardless of whether OS&G could, without impermissibly extending its nonconforming use, remove some amount of material greater than 1,500 cubic yards of material per year, the Land Court’s judgment was clear that (1) OS&G’s current level of activity extended far beyond the permissible limits of expansion, and (2) the building inspector’s cease and desist order was affirmed. Accordingly, we affirm the judgment of contempt.
To justify an order of contempt, “there must be a ‘clear and unequivocal command and an equally clear and undoubted disobedience.’ ” Ibid., quoting from Nickerson v. Dowd, 342 Mass. 462, 464 (1961). In paragraph three of the March, 1999, judgment, the Land Court judge stated that the decision of the zoning board of appeals was affirmed. In his order dated June 21, 1999, the judge explained that “ [although defendants did not specifically request the issuance of a permanent injunction, it must be remembered that the [March, 1999] judgment affirmed the action of the zoning board which upheld the cease and desist order of the Oakham building inspector.” The judge characterized his March order as being one of injunctive relief.
Findings of contempt have been upheld “where an order, although subject to some legal interpretation, has nonetheless
Any viable argument that the language in paragraph three of the March 8 order did not constitute a sufficiently clear and unequivocal command ended on June 21, 1999, when the judge clarified the March judgment and order. Compare Commonwealth v. Dodge, 428 Mass. 860, 863 (1999) (any lack of clarity in order which was basis of contempt was dispelled at later hearing). Furthermore, only where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir. 1991). Compare Commonwealth v. Dodge, 428 Mass. at 861 (criminal contempt decrees aimed at vindicating authority and dignity of the court will survive the reversal of an erroneous decree that was disobeyed).
In light of the plain language of paragraph three of the Land Court’s March, 1999, judgment and order, the judge’s subsequent explanation of that order, and OS&G’s admission that it continued to remove far more sand and gravel than allowed under the preexisting nonconforming use, it is difficult to conclude that OS&G did not understand the order of the Land Court to mean that OS&G must cease and desist from removing more than 1,500 cubic yards of sand and gravel from the locus annually. See Labor Relations Commn. v. Boston Teachers Union, Local 66, 374 Mass. at 82, 91 (upholding contempt orders for violation of order to “cease and desist from encouraging or condoning [a] threatened strike”).
So ordered.
The order also stated that .it would “remain in effect until you have been granted a special permit.” •'
In its decision dáted May 29, 1997, the board stated that the issue before it was “whether or not a special permit is needed.” The board concluded that it agreed “with the decision of the Zoning Enforcement Officer in issuing the Cease and Desist Order” and denied OS&G’s appeal from the order. Rephrased, the issue before the board was whether OS&G’s use of its land was in violation of law because if constituted an expansion of a nonconforming use beyond the protection of G. L. c. 40A, § 6.
The determination of what constitutes a change or substantial extension of a prior nonconforming use is based on a three-part test announced in Bridgewater v. Chuckran, 351 Mass. at 23, which asks *‘(l) [w]hether the use reflects the ‘nature and purpose’ of the use prevailing when the zoning by-law took effect[;] • • '• (2) [wjhether there is a difference in the quality or character, as well as the degree, "of use];] . . . [and] (3) [w]hether the current use is ‘different in kind in its effect on the neighborhood.’ ” (Citations omitted.)
The Land Court’s March 8, 1999, judgment stated:
“[1] that plaintiff’s sand and gravel operation, which removes more than 1,500 cubic yards of material annually from locus as described in the decision, is subject to the soil removal special permit provisions of the Town of Oakham’s zoning by-law, as amended in 1989; . . .
“[2] . . . that plaintiffs may, as of right, continue sand and gravel removal operations within the original ten-acre area used by the Jamaras, provided such activities remove less than 1,500 cubic yards of material annually; and . . .
“[3] . . . that the decision of the Oakham Zoning Board of Appeals relative to the instant action, filed with the Oakham Town Clerk on June 9, 1997, is affirmed . . . .”
In one instance, the Land Court judge found that OS&G removed 1,825 cubic yards of material in a single three-day period from June 16 through June 18, 1999.
The judge and the parties correctly acknowledge that a nonconforming use may be enlarged to the extent that the change “could be said to have reasonably evolved” from the nonconforming use. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 226-227 (1982). In light of the amount of expansion here, this is not such a case. There is nothing to prevent OS&G from applying for a special permit or pursuing any other legal remedies that may be available, in order to determine how much expansion beyond the threshold of 1,500 cubic yards of sand and gravel per year might be permissible.
General Laws c. 40A, § 15, fifth par., as amended by St. 1987, c. 498, § 3, states in relevant part: “The board shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question ... and setting forth clearly the reason for its decision and of its official actians . . . .”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.