Town of Orange v. Shay
Town of Orange v. Shay
Opinion of the Court
Judgment entered after a bench trial permanently enjoining the defendants, Joseph Shay, Jr., and Michael Generazio, from further removing gravel or other material, including topsoil, from their property located at Holtshire Road in Orange (town).
Background. At issue in this case is an approximately eight-acre portion (the parcel) of twenty-three acres of property located in Zoning District C. The defendants’ predecessor in title, Ronald Hurlburt, inherited the property from his mother in 1944 and sold it to the defendants in 2000. The parcel was originally used by the Hurlburt family for pasture and a hay field. Around 1935, Hurlburt began a small sand and gravel removal operation in the rear northeast section of the parcel in conjunction with his farming activities (the original sand and gravel operation). The use expanded considerably in the period from 1957 to 1958, and the parties offered conflicting evidence as to the extent of such use thereafter. Prior to 1981, Hurlburt’s use of the parcel for gravel removal did not violate any town zoning ordinance; on August 24, 1981, however, the town amended its by-law to require a special permit for earth removal. After the defendants acquired the property in 2000, they began a sand and gravel operation on the entire parcel, which involved removing topsoil, trees, shrubs, and vegetation from the property. The defendants did not obtain a special permit for that purpose. Complaints from neighbors about increased traffic from trucks and heavy equipment, as well as an abundance of noise, dirt and dust in the area, set in motion the legal proceedings described above.
1. The defendants’ case. At trial, Hurlburt, his long-time
2. The town’s case. Phyllis Kingsbury, Pauline Bixby, Thomas Pearson, Alana and Thomas Cox, Thomas Forest, and Larry Hurlburt,
3. The judge’s ruling. The trial judge did not find the defendants’ evidence credible; she instead credited the testimony of the towns’ witnesses and found that the original operation, while perhaps expanded somewhat in 1957 and 1958, never expanded to include the entire parcel.
Discussion. We must 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). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). When the trial judge has seen and heard the witnesses, we may revise the find
The trial judge was correct to conclude as matter of law that, even if it were to be assumed that the 1957-1958 operation had involved the entire parcel, Hurlburt had nonetheless abandoned that use after 1958.
The town’s amended zoning by:law, enacted in 1981, provides that “[a] nonconforming use which has been discontinued for two or more years shall not be re-established, and all future use shall conform to this bylaw.” The 1981 by-law required a special permit for all earth removal activities, with the exception of three limited circumstances not applicable here. Whatever the extent of the 1957-1958 operation, use to such an extent was nonrecurring thereafter, i.e., gravel removal use of that magnitude had been discontinued for two or more years by around 1960. The prior nonconforming use was thus extinguished by nonuse for two or more years.
We recognize, however, that although the trial judge used the terms “discontinuance” and “abandonment” interchangeably, the terms are in fact distinct, and this interchangeable use of the terms may have engendered some confusion. While the outcome here remains unaffected, clarification may be useful.
Prior to enactment of the Zoning Act, G. L. c. 40A, in 1975, our case law construed the terms “abandoned” and “discontinued” as being synonymous. Whether a particular municipal
Since 1975, however, the Zoning Act has permitted municipalities to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.” G. L. c. 40A, § 6, as appearing in St. 1975, c. 808, § 3. In so doing, the Legislature provided two separate avenues by which a prior nonconforming use can be extinguished: (a) abandonment; and (b) a period of nonuse of two or more years. The two concepts were thus no longer interchangeable. See Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 424 Mass. 404, 406 (1997)
As earlier discussed, regardless of the extent of the prior nonconforming use in this case, it was extinguished by discontinuance in or about 1960. Unlike the 1981 town zoning by-law, which allowed for extinguishment only by discontinuance, the 2000 by-law — also applicable here — added abandonment as another method by which a prior nonconforming use can be terminated.
Because the prior nonconforming use was extinguished by both abandonment and discontinuance, we need not address the question whether the current use of the parcel is a permissible extension of that use. See Oakham Sand & Gravel Corp. v. Oakham, 54 Mass. App. Ct. 80, 84 (2002).
Judgment affirmed.
This case is a consolidation of the defendants’ appeal from a town zoning board of appeals decision (G. L. c. 40A, § 17) and from the town’s enforcement order (G. L. c. 40A, § 7). The building inspector originally issued a cease and desist order on March 13, 2002. The defendants then appealed the order to the town’s zoning board of appeals, which upheld the order; the
See note 3, supra.
Hurlburt testified that he sold all his cows in 1957 and 1958 in order to use the parcel solely for gravel removal.
Larry Hurlburt is the son of Ronald Hurlburt.
The exact dimensions of the 1957-1958 operation are not in the record, but it appears from the town witnesses’ testimony that it did not come close to involving the entire parcel.
The defendant Shay testified, in contrast, that traffic was limited to seven or eight trucks per day, “doing about eight or [nine] loads apiece.”
The judge had before her, among other exhibits, photographs of the parcel in the 1960’s showing a pasture and a horse grazing, as well as pictures taken in 2002 showing the extent of defendants’ use of the parcel.
General Laws c. 40A, § 6, provides protection in the form of exemption from subsequently enacted zoning ordinances for any prior nonconforming use that does not substantially extend that use to the detriment of the neighborhood. Our case law has applied a three-pronged test outlined in Bridgewater v. Chuckran, 351 Mass. at 23, and Powers v. Building Inspector of Barnstable, 363 Mass. at 653, to make the requisite determination. “Under that test, we inquire: (1) ‘Whether the [current] use reflects the “nature and purpose” of the [prior] use,’ (2) ‘Whether there is a difference in the quality or character, as well as the degree, of use,’ and (3) ‘Whether the current use is “different in kind in its effect on the neighborhood.” ’ ” Derby Ref Co. v. Chelsea, 407 Mass. 703, 712 (1990), quoting from Bridgewater v. Chuckran, supra.
Although the defendants contend that the issue of abandonment was not before the judge, they are incorrect. The defendants argued at trial that the 1957-1958 operation involved the entire parcel and was never abandoned, and the judge acted appropriately in ruling on that issue.
In Ka-Hur, the court acknowledged that, since the enactment of G. L. c. 40A, § 6, it had issued two opinions, Derby Ref. Co. v. Chelsea, 407 Mass. 703 (1990), and Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205 (1982), that equated “abandoned” with “discontinued.” Ka-Hur v. Zoning Bd. of Appeals of Provincetown, supra at 406-407. The court distinguished its decisions in both those cases, concluding that Cape Resorts involved a pre-Zoning Act by-law and a conveyance, while in Derby Ref. Co., the municipality argued that the use had been abandoned. Ibid. The court stated that “our statement in Derby Ref. Co. should not be read to require an abandonment in order to extinguish a nonconforming use, but rather as a reaffirmation that abandonment is simply one of the two ways in which a nonconforming use can be extinguished.” Id. at 407.
The 2000 town by-law reads, in relevant part: “[a] nonconforming use which has been abandoned, discontinued for a period of two years ... or changed to a conforming use, shall not be re-established and any further use of the premises shall conform with this By-law.”
We note that there was some evidence that gravel removal continued on the one-acre site of the original operation, perhaps until the defendants bought the property. Although it is possible that the defendants could continue to use that small gravel pit, see Burlington v. Dunn, 318 Mass. 216, 223, cert. denied, 326 U.S. 739 (1945), we decline to address the point because the defendants have not argued it and apparently make no claim as to that acre.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.