Town of Uxbridge v. Griff
Town of Uxbridge v. Griff
Opinion of the Court
These are related appeals arising out of a
Permitted use. The land in question is located in an industrial district as defined in § VII(e) of the bylaw, which states in material part:
“In . . . INDUSTRIAL districts, the following uses of land, buildings and structures shall be permitted:
“1. Any use permitted in BUSINESS districts, exclusive of dwellings; . . .
*176 “3. Any other lawful industrial use which is not dangerous by reason of fire, explosion or other hazards, or injurious, noxious or detrimental to the Town of Uxbridge or its populace by reason of emission of dust, odors, gas, smoke, vibration or some other nuisance. ...”
At trial, Griff testified that 250 people come to the facility each week, with up to 100 people on certain days, and that as many as forty to fifty people use the track at the same time. The facility opens as early as 8:00 a.m. for classes and closes at 8:00 p.m. or dusk, whichever is earlier. He admitted that the riding is noisy and that there are “sound issues,” for which he proposed to install a sound barrier.
Other witnesses (including a direct abutter, a person who lived more than one mile away from the facility, and a police officer) testified about the noise, other concerns, and dangers associated with the facility. The abutter and distant neighbor discussed how the “unbearable” noise affected their ability to be outdoors and enjoy their property. The abutter had filed several complaints about the facility with the police, the board of health, and the board of selectmen. There was testimony relating to problems with dust generated from the facility, such that the abutter’s cars were often covered with one-quarter inch of dust and the dust was always in her house. In addition, the abutter had, in the past, observed patrons parking on her property, using her property for restroom facilities, and changing clothes in public. The police officer identified various complaints related to loud noise, general disturbance, operation of heavy equipment, medical assistance, parking issues, and dust at the facility. He had personally responded to some of these complaints and equated the noise “to a number of chainsaws running at the same time.” Moreover, there was testimony of numerous crashes and injuries at the facility, including one death after a crash.
These facts support the ruling of the court that the use was not permitted in an industrial zone.
Nor can these activities be protected as a permitted use in a
Other issues. We reject Griff’s argument that the order set forth in the amended judgment of July 26, 2005, is not clear and unequivocal. See Oakham Sand & Gravel Corp. v. Oakham, 54 Mass. App. Ct. 80, 86 (2002), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565 (1997) (to justify an order of contempt, there must be a “clear and unequivocal command”). In clear and unequivocal language, the order permanently enjoins Griff “from using the premises ... as a motorsports track” and provides for ninety days to remove all improvements associated with such use.
In the amended judgment, the trial judge found Griff in civil contempt for operating the motocross track over Memorial Day weekend, 2005, in violation of the preliminary injunction ordered by the court on March 16, 2005. Griff does not contest the contempt finding on its merits.
In civil action no. 2001-2487-B, the amended judgment dated July 26, 2005, is affirmed. In civil action no. 2002-294-B, the appeal is dismissed.
So ordered.
Griff testified that he is the owner of the Uxbridge Motorsports Park, which is a commercial motorcycle practice facility that is open to the general public for practice and lessons on a dirt course, seven-tenths of a mile long and twenty feet wide with various jumps and comers.
Griff failed to file a notice of the action with the town clerk as required by G. L. c. 40A, § 17. Failure to comply with this jurisdictional requirement means that the Superior Court lacked jurisdiction over the zoning appeal. See, e.g., County of Norfolk v. Zoning Bd. of Appeals of Walpole, 16 Mass. App. Ct. 930, 930 (1983); Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 568 (2001), quoting from Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 322-323 (1992) (“Receipt of notice by a city clerk is a prerequisite ‘for an action under G. L. c. 40A, § 17, which the courts have “policed in the strongest way” and given “strict enforcement” ’ ”). Decisions cited by Griff are easily distinguished, as the plaintiffs in those cases had met the jurisdictional prerequisite by filing a notice with the town or city clerk. See Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808 (1976); Twomey v. Board of Appeals of Medford, 7 Mass. App. Ct. 770, 772, 773 (1979). The issues addressed in those cases related to other procedural lapses.
In both the original judgment and the amended judgment, the judge identi
See also Black’s Law Dictionary 1096 (8th ed. 2004), where “noxious” is defined as “1. Harmful to health; injurious. 2. Unwholesome; corruptive”; and “nuisance” is defined as “1. A condition, activity, or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with its use or with the enjoyment of easements on the land or of public highways.”
According to § VII(d) of the bylaw, the permitted uses in a business district are (1) any of the usual wholesale and retail stores that normally serve the shopping needs of the residential population; (2) personal service establishments dealing directly with the consumer (specifically, barber shops, beauty shops, beauty parlors, diners, laundromats, dry cleaning establishments, gasoline and oil filling stations, and any other ordinary businesses of like nature); (3) offices and banks, theaters, bowling alleys, billiard rooms, lumber, fuel and ice establishments, and motels or hotels (that are at least 150 feet from any permanent residential building); (4) garaging and maintaining more than three automobiles of the passenger type; (5) retail trade or shops for custom work of the manufacturing of articles incidental to a retail business, lawfully conducted on the premises, except where it would create a nuisance or become hazardous; (6) any use of similar nature as determined by the board following a petition by the landowner; and (7) any use accessory to the foregoing.
The briefs and record appendix demonstrate that any typographical errors, including differences between docket dates and issuance dates, have been cor-reeled and, in any event, do not form a sufficient basis for a substantive argument of ambiguity based upon this order.
Griff, represented by counsel, had the benefit of an evidentiary hearing on the complaint for civil contempt.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.